Gaile K. OWENS and Pervis T. Payne, Appellants/Appellees, v. STATE of Tennessee, Appellee/Appellant.
Supreme Court of Tennessee, at Jackson.
Oct. 23, 1995.
908 S.W.2d 923
In the case sub judice, the evidence is clear that Mr. Wingert‘s seizure was not preceded by physical stress or exertion at work, or some acute, sudden or unexpected emotional stress directly attributable to his employment. For that reason and because, as already noted, the statutory presumption has been rebutted by competent medical evidence, this tribunal finds that the evidence preponderates against the judgment of the trial court.
The judgment of the trial court is accordingly reversed and the case dismissed. Costs are taxed to the plaintiff-appellee.
FRANK F. DROWOTA, III, Associate Justice, and ROBERT S. BRANDT, Judge, concur.
Ronald Lee Gilman, Rebecca Pearson Tuttle, Steven C. Brammer, Farris, Hancock, Gilman, Brannan & Hellen, Memphis, for Owens.
J. Brooke Lathram, William Lester Jones, R. Porter Field, Burch, Porter & Johnson, Memphis, for Payne.
Charles W. Burson, Attorney General & Reporter, Nashville, Amy L. Tarkington, Assistant Attorney General, Nashville, James J. Challen, III, Thomas D. Henderson, Assistant District Attorneys, Memphis, for Appellee/Appellant.
OPINION
ANDERSON, Chief Justice.
We granted this consolidated appeal in order to determine whether the rules, statutes, or constitution of this state, authorize a trial court in a post-conviction capital case to provide expert services if necessary to ensure the constitutional rights of an indigent petitioner. We have determined that this issue is best resolved by an interpretation of the applicable statutes and specifically whether
BACKGROUND
Appellant Gaile K. Owens was originally tried with co-defendant Sidney Porterfield in January of 1986. Owens was convicted of one count of accessory before the fact to first-degree murder and sentenced to death. This Court affirmed her conviction and sentence,1 and the United States Supreme Court denied certiorari review.2
Thereafter, Owens and Payne each filed petitions for post-conviction relief. In the course of their separate proceedings, each also moved the trial court for funds for investigative and expert services and requested an ex parte hearing on the motion.
In each proceeding the trial court denied the motion, relying on Teague v. State, 772 S.W.2d 915 (Tenn.Crim.App.1988), perm. app. denied (Tenn.1989). In that case, the Court of Criminal Appeals said in dicta that neither
The Court of Criminal Appeals granted an interlocutory appeal in each case, and consolidated the cases for hearing and decision. The Court of Criminal Appeals’ unanimously affirmed the trial court‘s denial of the request for an ex parte hearing, concluding that absent statutory authorization or Supreme Court rule, ex parte hearings are not appropriate. In a split decision, however, the panel concluded that open-court hearings on such motions are appropriate, and therefore remanded to the respective trial courts.
Despite agreeing that a remand was necessary, the two judge majority disagreed as to the rationale for the remand. Although finding that
Thereafter, we granted Rule 11 applications for permission to appeal to resolve these important questions of law.
STATUTORY INTERPRETATION
In this Court, Owens and Payne first assert that
Initially, we observe that under Tennessee law, courts do not decide constitutional questions unless resolution is absolutely necessary for determination of the case and the rights of the parties. Watts v. Memphis Transit Management Co., 224 Tenn. 721, 462 S.W.2d 495 (1971); Glasgow v. Fox, 214 Tenn. 656, 383 S.W.2d 9, 13-14 (1964); State ex rel. West v. Kivett, 203 Tenn. 49, 55-56, 308 S.W.2d 833 (1957); City of Greenfield v. Callins, 195 Tenn. 285, 287, 259 S.W.2d 525 (1953); State Board of Architectural & Engineering Examiners v. Blalock, 190 Tenn. 626, 631 231 S.W.2d 326 (1950); State ex rel. Loser v. National Optical Stores Co., 189 Tenn. 433, 444, 225 S.W.2d 263 (1949); Haynes v. City of Pigeon Forge, 883 S.W.2d 619, 620 (Tenn. App.1994); Bah v. Bah, 668 S.W.2d 663, 668 (Tenn.App.1983). If issues in a case can be resolved on non-constitutional grounds, courts should avoid deciding constitutional issues. Id. Accordingly, we must first consider whether or not the statute authorizing trial courts to hold ex parte hearings and order funds for expert and investigative services applies in capital post-conviction cases.
Our consideration of this issue is guided by well-established rules of statutory construction. The most basic principle of statutory construction is to ascertain and give effect to the legislative intent without unduly restricting or expanding a statute‘s coverage beyond its intended scope. State v. Sliger, 846 S.W.2d 262, 263 (Tenn.1993). Where, as here, the parties derive different interpretations from the statutory language, an ambiguity exists, and we must look to the entire statutory scheme in seeking to ascertain legislative intent. Lyons v. Rasar, 872 S.W.2d 895, 897 (Tenn.1994). Statutes “in pari materia“---those relating to the same subject or having a common purpose---are to be construed together. Id. Finally, in construing statutes courts must presume that the Legislature has knowledge of its prior enactments and knows the state of the law at the time it passes legislation. Wilson v. Johnson County, 879 S.W.2d 807, 810 (Tenn. 1994). We must now apply those principles to the statutes at issue in this case.
In support of their argument that trial courts are authorized by statute to hold ex parte hearings and order state-funded investigative and expert services in post-conviction capital cases if necessary to the protection of constitutional rights, Owens and Payne rely upon
(b) In capital cases where the defendant has been found to be indigent by the court of record having jurisdiction of the case, such court in an ex parte hearing may in its discretion determine that investigative or expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected. If such determination is made, the court may grant prior authorization for these necessary services in a reasonable amount to be determined by the court. The authorization shall be evidenced by a signed order of the court. The order shall provide for the reimbursement of reasonable and necessary expenses by the administrative director of the courts as authorized by this part, and rules promulgated thereunder by the supreme court.
That statutory provision is incorporated by reference and applies to post-conviction capital cases, Owens and Payne argue, by virtue of the Post-Conviction Procedure Act,
We conclude that both the State and the Court of Criminal Appeals interpreted the statutes at issue too narrowly. A brief review of the legislative history of the two statutes will demonstrate the basis of our conclusion.
Though not originally containing a provision relating to expert and investigative services, the statutory provisions contained in a chapter entitled “Rights of Defendants,” regarding appointment of counsel for indigent defendants and discretionary appointment of court reporter for indigent capital defendants, were originally enacted in 1955 and codified as Chapter 20 of Title 40. See
The Tennessee Post-Conviction Procedure Act was passed two years later in 1967. See
The Post-Conviction Procedure Act was recodified as Chapter 30, Part 1 of Title 40 in 1981, and the statutory provisions relating to compensation and appointment of counsel were recodified as Chapter 14, Part 2 of Title 40.6 From its initial enactment until this day, however, the post-conviction statute has always incorporated by reference those statutory provisions relating to compensation and reimbursement of appointed counsel in criminal and habeas corpus cases.7
Considering the background and historical development of the various statutes at issue, we think that when the Legislature adopted subsection (b) of
Having concluded that
Our conclusion that
To obtain an ex parte hearing, a capital post-conviction petitioner must submit a written motion to the trial court, alleging why under the particular facts and circumstances of the case, investigative or expert services are necessary to ensure the protection of the petitioner‘s constitutional rights. A bare allegation that support services are needed is not sufficient. In addition, the motion must include: (a) the name of the proposed expert or service; (b) how, when and where the examination is to be conducted or the services are to be performed; (c) the cost of the evaluation and report thereof; and (d) the cost of any other necessary services, such as court appearances. Tenn.Sup.Ct.Rule 13, § 2(B)(10). Once the petitioner satisfies these threshold procedural requirements, the trial court must conduct an ex parte hearing on the motion.
The trial court should grant the motion if, at the hearing, the petitioner demonstrates that investigative or expert services are necessary to ensure the protection of the petitioner‘s constitutional rights. In the context of direct appeal capital cases we have discussed the showing of particularized need required under
Those same principles apply to a trial court‘s evaluation of a request for expert or investigative services in the post-conviction context. Specifically, a petitioner must demonstrate by specific factual proof that the services of an expert or an investigator are necessary to establish a ground for post-conviction relief, and that the petitioner is unable to establish that ground for post-conviction relief by other available evidence.
Of course,
If the motion for investigative or expert services is granted, “the court must grant the prior authorization for these expert services in a reasonable amount to be determined by the court.” Tenn.Sup.Ct.Rule 13, § 2(B)(10); see also
Applying those principles to these consolidated cases, we remand to the respective trial courts for a determination, in the first instance, of whether Owens and Payne satisfied the procedural prerequisites to obtaining an ex parte hearing. If so, the ex parte hearing is to be conducted in conformity with this decision.
CONCLUSION
For the foregoing reasons, we conclude that
REID and BIRCH, JJ., concur.
DROWOTA, J. and SAMUEL L. LEWIS, Special Judge, dissent.
SAMUEL L. LEWIS, Special Judge, dissenting.
I respectfully dissent from the majority‘s opinion that
Whether post-conviction petitioners are entitled to expert support services at state expense is primarily a question of statutory interpretation involving three main provisions: (1)
The natural and ordinary meaning of the language used in the statutes reveals no intention of the General Assembly to provide state subsidized support services to indigent post-conviction petitioners.
The General Assembly passed
In capital cases where the defendant has been found to be indigent by the court of record having jurisdiction of the case, such court in an ex parte hearing may in its discretion determine that investigative or expert services or other similar services are necessary to ensure that the constitutional rights of the defendant are properly protected.
The sole reference made to capital cases denominates the party potentially entitled to support services as the “defendant,” not the petitioner. Further, because
The Supreme Court promulgated Rule 13 pursuant to
Rule 13 is divided into two parts. The first part deals with the appointment of counsel, and the second deals with the compensation for appointed counsel. Rule 13 defines a capital case for purposes of the Rule and the court as follows:
A case in which an individual is indicted for an offense that is punishable by death and wherein the district attorney general announces to the court at any time, prior to the presentation proof, that the state will insist upon the death penalty. See
Tenn.Code Ann. § 40-14-207 .
Tenn.S.Ct.R. 13, § 1.
The plain language used in Rule 13 to effectuate the intent of
Our courts recognize that “[t]he fundamental rule of statutory construction is to ascertain and, if possible, give effect to the intention or purpose of the legislature as expressed in the statute.” Worrall v. Kroger Co., 545 S.W.2d 736, 738 (Tenn.1977). “[L]egislative intent or purpose is to be ascertained primarily from the natural and ordinary meaning of the language used, when read in the context of the entire statute, without any forced or subtle construction to limit or extend the import of the language.” Id. The absence of any requirement for the provision of support services at state expense for indigent post-conviction petitioners is dispositive of this issue. Presumably, the legislature would have included a requirement had it intended such an application.
Rule 706(b) of the Tennessee Rules of Evidence specifically provides that the compensation for experts appointed by the court in bench tried issues is payable from “funds which may be provided by law in criminal cases and civil actions and condemnation proceedings.” Rule 706(b) does not, by itself, authorize a court to appoint such an expert at state expense. Instead, it requires compensation only if “provided by law.”
The primary case relied on by both the trial court and the court of appeals in deciding the issue in this case was Teague v. State, 772 S.W.2d 915 (Tenn.Cr.App.1988), cert. denied, 493 U.S. 874, 110 S.Ct. 210, 107 L.Ed.2d 163 (1989). In Teague, the petitioner retained an attorney and investigator for his trial. Id. at 927. On two separate occasions during the post-conviction process, his trial attorney moved for the appointment of a second attorney and for an investigator at state expense. The court appointed a second attorney to assist the petitioner, but it denied his request for investigative services. Id. The court of criminal appeals affirmed the trial court‘s denial of an investigator and unanimously held:
A fair reading of T.C.A. Sec. 40-14-207(b) and Rule 13 of the Tennessee Supreme Court, coupled with the fact that T.C.A. Sec. 40-30-121 is silent as to these matters, leads this Court to the conclusion that the provisions of this statute and rule are limited in scope and application to the trial of an accused for a capital offense when the district attorney general has announced his intention to seek the death penalty. The statute and rule do not apply to post-conviction proceedings notwithstanding the fact the petitioner has been sentenced to the extreme penalty of death.
Both before and after the decision in Teague, the Court of Criminal Appeals held that Tennessee Code Annotated section 40-14-207(b) had no application to post-conviction proceedings. See State v. Laney, No. 873, 1989 WL 150839, at *4 (Tenn.Cr.App. at Knoxville 14 December 1989); Caruthers v. State, No. 1164, 1988 WL 124013, at *6 (Tenn.Cr.App. at Knoxville 22 November 1988).
Neither the Due Process Clause nor the Equal Protection Clause of the United States Constitution requires that the state provide post-conviction petitioners with experts at state expense. Likewise, there is nothing in the Tennessee Constitution which the court can construe to provide post-conviction petitioners with experts at state expense.
A look at the analysis utilized by the United States Supreme Court to determine the extent of process required in indigent post-conviction petitions is instructive in resolving this issue. The proper starting point is to know that the Constitution does not require post-conviction procedures. Pennsylvania v. Finley, 481 U.S. 551, 557, 107 S.Ct. 1990, 1994, 95 L.Ed.2d 539, 547 (1987). However, once a state chooses to provide post-conviction remedies, it must do so in a manner that meets constitutional standards. See id. In Finley, the Supreme Court held that the fundamental rights as mandated by the Due Process Clause do not require states to supply a lawyer in the post-conviction context. Id. The court based the decision in Finley on its holding in Ross v. Moffitt, 417 U.S. 600, 610, 94 S.Ct. 2437, 2443-44, 41 L.Ed.2d 341, 351 (1974) that the right to appointed counsel extends to the first appeal as of right and no further. This dichotomy between the stages of a criminal proceeding, with the trial and direct appeal as of right on one side and discretionary appeals and collateral attacks on the other, is based upon the change in the position of the parties. Once the defendant becomes the party initiating the legal proceeding, the constitutional considerations are different.
[I]t is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State‘s prosecutor but rather to overturn a finding of guilt made by a judge or a jury below. The defendant needs an attorney on appeal not as a shield to protect him against being “hailed into court” by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determinations of guilt.
A person‘s right to counsel ends with the conclusion of the first stage of direct appeal.
While this court is always the final arbiter of the Tennessee Constitution and is free to expand the minimum level of protection mandated by the federal constitution, the court noted in Burford v. State, 845 S.W.2d 204, 207 (Tenn.1992) that it has long been its practice to construe article I, section 8 of the Tennessee Constitution synonymously with the fifth and fourteenth amendments of the United States Constitution. The standards of due process followed by the federal courts are sufficient to protect the rights of indigent post-conviction petitioners in Tennessee.
For the foregoing reasons I respectfully dissent from so much of the majority‘s opinion that holds that indigent post-conviction petitioners who have been convicted with a capital offense and sentenced to death are entitled to state paid, investigative, or expert services.
DROWOTA, III, J., concurs.
Gloria PITTMAN, Plaintiff--Appellee/Appellant, v. LASCO INDUSTRIES, INC., Defendant-Appellant/Appellee.
Supreme Court of Tennessee, at Jackson.
Nov. 6, 1995.