No. ____________________

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2003

DARYL KEITH HOLTON,

Petitioner,
v.

STATE OF TENNESSEE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF TENNESSEE

PETITION FOR WRIT OF CERTIORARI

JOHN E. APPMAN
Counsel of Record
ATTORNEY AT LAW
P.O. BOX 99
JAMESTOWN, TN 38556
(931) 879-7619

-- THIS IS A CAPITAL CASE --

1) whether the death sentence in this case violates the Fifth and Fourteenth Amendments to the U.S. Constitution, since the aggravating circumstances used to enhance the maximum sentence for murder from life imprisonment to death were not charged in the indictment, and

2) whether precluding presentation of mitigating evidence in a capital sentencing trial violates the Eighth Amendment and Due Process where the Petitioner directed counsel not to present the evidence and the trial court ordered counsel to defer to Petitioner.

TABLE OF CONTENTS

OPINIONS BELOW	1

STATEMENT OF JURISDICTION	1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED	1

STATEMENT OF THE CASE	2

REASONS FOR GRANTING THE WRIT	7

A.	The Tennessee Supreme Court Misapplied Federal Constitutional Law in Upholding the Tennessee Capital Sentencing Scheme and Petitioner’s Death Sentence Since Aggravating Circumstances Used to Enhance the Maximum Punishment from Life Imprisonment to Death Were Not Charged in the Indictment  	7

B.	The Eighth Amendment and Due Process are Violated by Imposition and Execution of a Death Sentence Where the Sentencing Jury was Precluded from Considering Mitigating Evidence Due to an Order Directing Defense Counsel to Defer to Defendant’s Instructions Regarding Presentation of Evidence	11

CONCLUSION	15

Appendix A – Opinion of the Supreme Court of Tennessee Dated January 5, 2004	A-1

Appendix B – Opinion of the Court of Criminal Appeals of Tennessee Dated 
July 21, 1999	A-23

Appendix C – Order Denying Petition for Rehearing Dated February 17, 2004	A-40

Appendix D – Relevant Tennessee Statutes	A-41

Appendix E – Indictment 	A-50

Appendix F – State’s Notice to Seek the Death Penalty Dated April 20, 1998	A-55

Appendix G – State’s Supplemental Notice Seeking the Death Penalty Dated May 7, 1999	A-57

TABLE OF CITED AUTHORITIES

Cases:

Apprendi v. New Jersey, 530 U.S. 466 (2000)	passim

Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992)	7

Commonwealth v. McKenna, 383 A.2d 174 (Pa. 1978)	13

Furman v. Georgia, 408 U.S. 238 (1972)	13

Gregg v. Georgia, 428 U.S. 153 (1976)	12

Hitchcock v. Dugger, 481 U.S. 393 (1987)	12

Lockett v. Ohio, 438 U.S. 586 (1978)	12

Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152 (2000)	6, 14

Michigan v. Long, 463 U.S. 1032 (1983)	11

Newton v. Cox, 878 S.W.2d 105 (Tenn. 1994)	7

Penry v. Lynaugh, 492 U.S. 302 (1989)	6

People v. Deere, 710 P.2d 925 (Cal. 1985)	13, 14

Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 12 (Tenn. 2000)	7

Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997)	7

Ring v. Arizona, 536 U.S. 584 (2002)	passim

State v. Brackett, 869 S.W.2d 936 (Tenn. Crim. App. 1993)	7

State v. Dellinger, 79 S.W.3d 458 (Tenn. 2002)	4

State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000)	9

State v. Hale, 840 S.W.2d 307, 312 (Tenn. 1992)	7

State v. Holton, 126 S.W.3d 845 (Tenn. 2004)	passim

Cited authorities

State v. Martini, 677 A.2d 1106 (N.J. 1996)	13

Sumner v. Shuman, 483 U.S. 66 (1987)	12

United States v. Haynes, 269 F.Supp.2d 970 (W.D. Tenn. 2003)	8, 11

United States v. Higgs, 353 F.3d 281 (4th Circ. 2003)	8

Walton v. Arizona, 497 U.S. 639 (1990)	8

Woodson v. North Carolina, 428 U.S. 280 (1976)	13

Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998)	2, 5, 12

Statutes:

A.R.S. § 13-1105(C)	10

A.R.S. § 13-703	10

Tenn. Code Ann. § 39-13-202(3)(b)	9

Tenn. Code Ann. §39-13-204(f)	10

Tenn. Code Ann. §39-13-204(g)	10

Tenn. Code Ann. §39-13-204(i)	
10

Tenn. Code. Ann. § 39-13-208	9

28 U.S.C. § 1257(a)	1

Constitutional Provisions:

United States Constitution, Eighth Amendment	1

United States Constitution, Fourteenth Amendment	1

United States Constitution, Article VI, cl. 2	7
					Cited authorities	

Tennessee Constitution, Article I § 14	1, 7

Tennessee Constitution, Article I § 16	1

Rules:

Tenn.R.Crim.P. 12.3(b)	9

Tenn. R. App. P. 39	6

Other authority:

Raybin, Tennessee Criminal Practice and Procedure § 4.3 (1984)	9

Sabelli, M., Train Wrecks and Freeway Crashes: An Argument for Fairness and Against Self Representation in the Criminal Justice System, 91 J. Crim. L. & Criminology 161 (2000)
	14

	Petitioner Daryl Keith Holton respectfully requests that a writ of certiorari issue to review the judgment of the Supreme Court of the State of Tennessee in this case.

	The opinion of the Tennessee Supreme Court is reported at State v. Holton, 126 S.W.3d 845  (Tenn. 2004) and is attached as Appendix (“App.”) A at A-1.  The opinion of the Tennessee Court of Criminal Appeals is at 2002 WL 1574995 (Tenn.Crim.App.)and is attached as App. B at A-24.

	On January 5, 2004, the Tennessee Supreme Court filed its opinion in State v. Holton,  126 S.W.3d 845 (Tenn. 2004).  On February 17, 2004, the Tennessee Supreme Court filed its order denying Petitioner’s rehearing motion. See Order in No. M2000-00766-SC-DDT-DD (February 17, 2004), attached as App. C at A-40.  The jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1257(a).

	Section 1 of the Fourteenth Amendment to the Constitution of the United States, provides in pertinent part, “[N]or shall any state deprive any person of life, liberty, or property, without due process of law....”
	The Eighth Amendment to the Constitution of the United States, states ”[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
	The Tennessee Constitution, Article I §14, states: “no person shall be put to answer any criminal charge but by presentment, indictment or impeachment.”

	The Tennessee Constitution, Article I §16 states: “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” 
	The relevant provisions of Tennessee law are included below in App. D at A-41. 

	This case presents the question whether the state of Tennessee can refuse to apply the federal constitutional rule announced in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Ring v. Arizona, 536 U.S. 584 (2002), by allowing a maximum life sentence to be enhanced to death based on aggravating circumstances not charged in the indictment.  Further, this case raises the issue of whether precluding presentation of  mitigation evidence in a capital sentencing trial violates the Eight Amendment and Due Process where the Petitioner directed counsel not to present the evidence and the trial court ordered counsel to defer to Petitioner.1
	Petitioner Daryl Keith Holton  was indicted on April 20, 1998, by the Bedford County Grand Jury on charges of first degree murder for the killings of Stephen Holton, Brent Holton, Eric Holton, and Kayla Holton on November 30, 1997.  App. E at A-50 .  On April 20, 1998, the state filed a notice of its intent to seek the death penalty, identifying six statutory circumstances upon which the state relied.  App. F at A-55.  On May 7, 1999 the state filed a supplemental notice seeking the death penalty, reiterating the previously identified six statutory circumstances and identifying the indictment counts for which the state would seek application of the aggravating circumstances.  App. G at A-57.  Petitioner was tried in Bedford County by a jury which featured the Bedford County Attorney, John T. Bobo, as foreman.  See Transcript of Motion for New Trial on February 24, 2000, p.8.  After deliberating for 50 minutes, the jury found Petitioner guilty on all four counts of first degree murder on June 15, 1999.  See Transcript of Trial Proceedings, Vol. VIII at 1347.  Following a brief sentencing trial, consisting primarily of argument, the jury deliberated for two hours before returning a death sentence.  Id. at 1422.  Pursuant to Petitioner’s demands, counsel presented only one witness on Petitioner’s behalf, a jail administrator who testified that Daryl Keith Holton was a good prisoner.  See State v. Holton,  126 S.W.3d 845, 857 (Tenn. 2004).  The state presented evidence of two aggravating circumstances2 and the trial court instructed the jury upon those two aggravating circumstances.
	Petitioner requested that new counsel be appointed for purposes of the motion for a new trial – an essential component to preserving issues for appellate review in Tennessee – since he wished to raise claims regarding ineffective assistance of counsel in the motion and on appeal.  See Transcript of Hearings on November 19, 1999 and January 14, 2000, p.67-70; Transcript of Trial Proceedings, Vol. VII at 994.  The trial court denied his request and ordered appointed counsel to continue to represent Petitioner on the appeal.  See Transcript of Hearings on November 19, 1999 and January 14, 2000, p.77-78; Transcript of Trial Proceedings, Vol. VII at 1001.
	On appeal to the Tennessee Supreme Court, following denial of relief in the Court of Criminal Appeals3, Petitioner asserted, among other issues, that Tennessee’s capital sentencing scheme is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) because the aggravating circumstances used to enhance a maximum life sentence to death are not charged in the indictment.  Although the state argued that this claim was waived, the Tennessee Supreme Court addressed the issue on the merits and denied relief, relying upon its previous holding in State v. Dellinger, 79 S.W. 3d 458, 467 (Tenn. 2002) that “[n]either the United States Constitution nor the Tennessee Constitution requires that the State charge in the indictment the aggravating factors to be relied upon by the State during sentencing in a first degree murder prosecution.” State v. Holton,  126 S.W.3d 845, 862 (Tenn. 2004).
	The Tennessee Supreme Court also conducted its mandatory review, pursuant to T.C.A. § 39-13-206(c)(1) (1997), of (1) whether the sentence of death was imposed in any arbitrary fashion;  (2) whether the evidence supports the jury’s finding of statutory aggravating circumstances;  (3) whether the evidence supports the jury’s finding that aggravating circumstances outweigh any mitigating circumstances; and (4) whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the nature of the crime and the defendant.  See State v. Holton, 126 S.W. 3d at 865-869.4  As a result of the trial court’s order requiring Petitioner’s counsel to defer to Petitioner’s instructions to not present mitigating evidence, the Tennessee Supreme Court was precluded from considering mitigating evidence in conducting this review.5
        The Tennessee Supreme Court approved the trial court’s order based upon a previous case in which the Court ruled that capital defendants may direct their attorneys to not present mitigating evidence on their behalf in capital sentencing trials – Zagorski v. State, 983 S.W.2d 654, 658 (Tenn.1998).  “Furthermore, a criminal defendant has the right and the authority to make substantive decisions concerning the presentation of his or her defense, including the right to forego the presentation of mitigating evidence during the sentencing phase of a capital trial.  Defense counsel and the trial court complied with Zagorski and insured that the defendant’s decision was voluntary, knowing, and intelligent.”  State v. Holton, 126 S.W. 3d at 862 (citation omitted).  Compliance with Zagorski includes the requirement that the trial court “shall not inquire of counsel as to the content of any known mitigating evidence.”  Zagorski v. State, 983 S.W.2d at 660.  Thus the trial court precluded Petitioner from an offer of proof, sealed or otherwise, to make a record of the mitigating circumstances which might be present.6
	The Tennessee Supreme Court affirmed Petitioner’s conviction and sentence despite a process which prevented the sentencing jury from considering mitigating evidence and prevented counsel from proffering for the record the mitigation evidence which was available.

	On January 15, 2004, Petitioner filed, pursuant to Tennessee Rules of Appellate Procedure, Rule 39, a petition for the Tennessee Supreme Court to rehear his case arguing that the Court  misapplied federal constitutional law in failing to require that aggravating circumstances which enhance a maximum sentence of life to death be charged in the indictment.  Petitioner also asserted that applying the rule of Zagorski in Petitioner’s case violated the fundamental due process and Eighth Amendment protections required in death penalty cases.  He asserted that applying Zagorski almost certainly guaranteed a death sentence since Tennessee is a “weighing state” in which jurors are required to sentence a defendant to death if aggravating circumstances “outweigh” mitigating circumstances.7  Also, Petitioner noted that preclusion of presentation of mitigating circumstances ensure that the jurors and judge who sentenced him to death did not and never will know the complete circumstances of his life, character, and record and thus were unable to impose punishment directly related to his personal culpability, therefore violating a fundamental principle of law, see, e.g., Penry v. Lynaugh, 492 U.S. 302 (1989).
	The Tennessee Supreme Court denied Petitioner’s request for rehearing by Order dated February 17, 2004.  See App. C at A-40.  Petitioner, by and through undersigned counsel8, requests that a writ of certiorari issue to review the judgment of the Supreme Court of the State of Tennessee in this case.

	The Tennessee Supreme Court has decided two important questions of federal law in a way that conflicts with relevant decisions of this Court.

	In the court below, Petitioner argued that the Tennessee capital murder sentencing statutes violate the U.S. Constitution because aggravating circumstances used to enhance the maximum punishment from life imprisonment to death are not charged in the indictment.  Petitioner asserted that the “charged in the indictment” portion of the rule in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) requiring that any fact (other than a previous conviction) which increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt, applies in Tennessee since the Tennessee Constitution, Article I, § 14 provides for the right to a grand jury indictment in all felony cases.9
  Further, Petitioner argued that this Court in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 546 (2002) confirmed the application of the Apprendi rule to aggravating circumstances in states where aggravating factors operate as the functional equivalent of an element of a greater offense. 
	The Tennessee Supreme Court upheld Petitioner’s death sentence, holding that “Ring does not stand for the broad proposition that aggravating circumstances must be charged in the indictment to satisfy constitutional standards.  Therefore, Ring provides no relief to the defendant and does not invalidate this Court’s holding in Dellinger.”  State v. Holton, 126 S.W.3d at 863 (citations omitted).  The court below misapplied federal constitutional law by failing to comprehend the holdings in Apprendi and Ring as separate branches of a unitary constitutional rule.10 
	The Apprendi portion of the rule requires that any fact (other than a previous conviction) which increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.  The Ring portion of the rule clarifies that aggravating circumstances are factors which increase the maximum penalty for murder in capital sentencing schemes structured like Tennessee.  The clarification was necessary because a previous decision, Walton v. Arizona, 497 U.S. 639 (1990), characterized aggravating circumstances in capital cases as mere “sentencing considerations” and not “elements.”  The rule in Apprendi purported to invalidate such distinctions and, in fact, four justices had dissented in Walton due to the distinction drawn by the majority in that case.  Ring resolved any question that aggravating circumstances were somehow exempt from the broad rule described by Apprendi.
	The Tennessee capital sentencing scheme is structured similarly to the Arizona system reviewed in Ring.11  Tennessee homicide and sentencing statutes provide for various degrees of homicide, including the crime of first degree murder, which is defined in Tenn. Code Ann. § 39-13-202 (1997).  The penalty for first degree murder is a range between life and death.  Tenn. Code Ann. § 39-13-202(3)(b) (1997).  Death is a potential sentence only for first degree murder and only if a prosecutor chooses to seek death and files a written notice of aggravating circumstances.  See State v. Gilliland, 22 S.W.3d 266 (Tenn. 2000) (notice is required to seek death and also to seek life imprisonment without parole; withdrawal of death notice without specifying intent to seek life imprisonment in a separate writing is an implicit withdrawal of intent to seek life imprisonment without parole).  See also Tenn.R.Crim.P. 12.3(b) (requiring that the district attorney general give 30-days notice of an intent to seek the death penalty and state the applicable aggravating circumstances that the state intends to rely on in seeking the death penalty); Raybin, Tennessee Criminal Practice and Procedure § 4.3 (1984) (“murder in the first degree is a capital crime only when the state alleges certain aggravating factors”).12
	Once a prosecutor does provide notice of aggravating factors, should a defendant be found guilty of first degree murder, the trial proceeds to a sentencing phase where the jury hears evidence of aggravating and mitigating circumstances.  Tenn. Code Ann. § 39-13-204 (1997).  Aggravating circumstances are set out in this statute, subsection (i), and must be found by the jury unanimously and beyond a reasonable doubt.  At the time of the offense fourteen aggravating circumstances were incorporated in the statute.  Tenn. Code Ann. § 39-13-204(i) (1997).  If one or more aggravating circumstance is found, the maximum statutory penalty for first degree murder is increased from life in prison with possibility of parole, Tenn. Code Ann. § 39-13-204(f) (1997), to death, Tenn. Code Ann. § 39-13-204(g) (1997). A chart of the procedure follows:
Crime	Additional Factor – Aggravating Circumstance	 Maximum Penalty	
First Degree Murder	None 
	 Life w/ possible parole 	
First Degree Murder	Yes
	 Death	
	
	Arizona’s capital sentencing scheme as reviewed in Ring, like Tennessee’s, provided that the punishment for first degree murder is a range between life imprisonment and death.  A.R.S. § 13-1105(C). See Ring v. Arizona, 122 S.Ct. at 2434.   If certain requirements are met, including the state’s filing of a death notice, a judge then conducted a sentencing hearing, weighing aggravating and mitigating circumstances, and imposing a penalty.  A.R.S. § 13-703. Id.  Arizona’s attempts to reconcile this cross-referenced statutory scheme with Apprendi were rejected in Ring v. Arizona.  Tennessee’s statutory scheme, with a general penalty section cross-referenced to more specific statutes requiring aggravating circumstances to justify the two most severe penalties, establishes aggravating circumstances as “the functional equivalent of an element of a greater offense” just as surely as Arizona’s statute.  As a result, aggravating circumstances in Tennessee are elements subject to the Apprendi/Ring rule: any fact that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.13
	The Tennessee Supreme Court has misapplied federal constitutional law by failing to acknowledge that this Court in Ring applied the Apprendi rule to aggravating circumstances in the context of the jury sentencing prong of that rule, and not the indictment prong, because the indictment issue was not before the Court.  However, the implications have been clear to most federal courts which have addressed the issue, see United States v. Haynes, 269 F.Supp.2d at 977-978 (collecting cases).
	By compartmentalizing the federal constitutional rules of law found in the Supreme Court decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000) and Ring v. Arizona, 536 U.S. 584 (2002), rather than synthesizing the holdings, the Tennessee Supreme Court inaccurately interpreted and, therefore, misapplied federal constitutional law in upholding the Tennessee capital sentencing scheme and petitioner’s death sentence.14

	The Eighth Amendment demands that capital defendants receive individualized sentencing consideration to ensure that death sentences do not result arbitrarily.  Gregg v. Georgia, 428 U.S. 153, 196-98 (1976).  This Court has repeatedly held that any capital sentencing scheme which keeps from the jury important, relevant mitigating circumstances is unconstitutional.  See Sumner v. Shuman, 483 U.S. 66 (1987) (It is “constitutionally required that the sentencing authority has information sufficient to enable it to consider the character and individual circumstances of a defendant prior to imposition of a death sentence”, quoting Gregg v. Georgia, 428 U.S. at 189-190, n. 38 (1976)); Lockett v. Ohio, 438 U.S. 586 (1978) (stating that the sentencing authority must be permitted to consider “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense.”); Hitchcock v. Dugger, 481 U.S. 393 (1987) (a unanimous decision, in which a death sentence was invalidated because “the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of non-statutory mitigating circumstances.”)
	Tennessee has instituted a procedure which precludes capital sentencing juries from considering mitigating evidence by forcing appointed counsel to follow the dictates of often severely mentally ill clients.  Petitioner was sentenced to death under this procedure by a jury which was not permitted to consider mitigating circumstances.  Although the procedure was placed into effect to demonstrate respect for the individual,15 ultimately the Tennessee Supreme Court’s decision in Zagorski as applied in this case denies that respect by promoting the individual’s execution.  The ultimate disrespect for humanity is displayed in the deliberate extinguishment of human life.  See Furman v. Georgia, 408 U.S. 238, 291 (1972) (Brennan, J., concurring) (“In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity.”)
	The Tennessee Supreme Court’s ruling in Petitioner’s case affirmed a process which did not take into account mitigating circumstances in this case, and thus prevented the jury from accurately assessing punishment.  See Woodson v. North Carolina, 428 U.S. 280, 304 (1976) (opinion of Stewart, Powell, and Stevens, JJ.):
A process that accords no significance to relevant facets of the character and record of the individual offender or the circumstances of the particular offense excludes from consideration in fixing the ultimate punishment of death the possibility of compassionate or mitigating factors stemming from the diverse frailties of humankind.  It treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death.

	By precluding the jury from considering mitigating circumstances, the process utilized in this case also undermined the public’s interest in reliable death penalty determinations.  See People v. Deere, 710 P.2d 925 (Cal. 1985).  “The public has an interest in the reliability and integrity of a death sentence decision that transcends the preferences of individual defendants.”  State v. Martini, 677 A.2d 1106, 1107 (N.J. 1996).  As the Pennsylvania Supreme Court, in Commonwealth v. McKenna, 383 A.2d 174, 181 (Pa. 1978), has noted:
While this may be a genuine conviction on his part [for the defendant to choose death over life imprisonment], the waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence.  Especially is this so where, as here, to do so would result in state aided suicide.  The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue -- the propriety of allowing the state to conduct an illegal execution of a citizen.  

The decision of the Tennessee Supreme Court in Petitioner’s case undermines the public interest in reliable sentencing and thus violates the Eighth Amendment and Due Process protections which are inherent in capital cases.  The error is compounded by precluding counsel from making an offer of proof regarding the mitigating evidence available so that the Tennessee Supreme Court could consider the mitigating circumstances in the case to determine whether the death sentence is a proportionate punishment.
	This Court has not specifically addressed this issue previously.  However, due to the increasing number of cases in which capital defendants are utilizing the justice system as a means of  committing state-aided suicide or otherwise asserting Faretta or penumbral Faretta rights to subvert the justice system,16 this Court should grant review of this case.  The Court has previously recognized that a defendant’s interests in determining the course of his case must be balanced against the “government's interest in ensuring the integrity and efficiency” of the judicial system.  Martinez v. Court of Appeal of California, Fourth Appellate District, 528 U.S. 152, 162 (2000).  In Petitioner’s case, the government’s interest in assuring the integrity of the system includes its interest in ensuring that the death sentence not be meted out arbitrarily and that the criminal justice system not be perverted into a suicidal instrument.  Petitioner’s death sentence, since it was the product of a process which precluded consideration of mitigating circumstances “violate[s] the fundamental public policy against misusing the judicial system to commit a state-aided suicide.”  People v. Deere, supra. 

	Wherefore, for the reasons stated herein, the Court requests that a writ of certiorari issue to review the judgment of the Supreme Court of the State of Tennessee in this case 	
		Respectfully submitted,

_____________________________
JOHN E. APPMAN
Counsel of Record
ATTORNEY AT LAW
P.O. BOX 99
JAMESTOWN, TN 38556
(931) 879-7619