IN THE SUPREME COURT OF TENNESSEE
AT NASHVILLE

STATE OF TENNESSEE,				)
							)
	Appellee					)
							)	Bedford County
VS.							)	No. M2000-00735-SC-DDT-DD
							)	Death Penalty
DARYL KEITH HOLTON	 			)
							)	
	Appellant					)

PETITION TO REHEAR FOR 
APPELLANT DARYL KEITH HOLTON

									______________________
									JOHN E. APPMAN
									BPR# 2809
									ATTORNEY AT LAW
									P.O. BOX 99
									JAMESTOWN, TN 38556
									(931) 879-7619

	Comes the Appellant, Daryl Keith Holton, and respectfully moves the Court to grant this Petition for Rehearing, pursuant to Tennessee Rules of Appellate Procedure, Rule 39.  Appellant asserts that a rehearing should be granted since the Court has misapprehended fundamental federal constitutional law and the impact which federal constitutional principles have upon the Tennessee capital sentencing scheme.  Specifically, 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, this Court inaccurately interprets and, therefore, misapplies federal constitutional law in upholding the Tennessee capital sentencing scheme and Mr. Holton’s death sentence.
	Mr. Holton also respectfully submits that the Court has misapprehended state and federal constitutional law in the method and substance of the mandatory proportionality review of his death sentence and in finding the Tennessee insanity defense statute constitutionally acceptable.  Further, Mr. Holton submits that the Court misapprehended state and federal constitutional law in affirming the holding of the Court of Criminal Appeals that the death sentence in this case does not violate the fundamental right to life guaranteed by the Tennessee and U.S. Constitutions since a death penalty in this case does not further a compelling state interest.  
	In support of this Petition, Appellant relies upon authority and arguments found in his briefs before this Court and the Court of Criminal Appeals, in addition to the following:    
CONSTITUTIONALITY OF THE TENNESSEE
CAPITAL SENTENCING STATUTORY SCHEME
 	
	1.  Appellant’s claim is that the Tennessee capital murder sentencing statutes are unconstitutional in that aggravating circumstances are not charged in the indictment.  Since aggravating circumstances were not charged in the indictment upon which Mr. Holton is death-sentenced, his death sentence violates the federal and state constitutions.  In the January 5, 2004 opinion upholding Mr. Holton’s death sentence, the Court states “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.” (Citations omitted).  Appellant respectfully submits that the question of whether the failure to charge aggravating circumstances in the indictment renders the sentencing scheme unconstitutional cannot be adequately addressed without reading Apprendi and Ring as separate branches of a unitary constitutional rule.1 
	2.  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.2
  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 clarified any question that aggravating circumstances were somehow exempt from the broad rule described by Apprendi.
	3.  The Supreme 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 970, 977-978 (collecting cases).  Appellant encourages this Court also to recognize the application of the Apprendi/Ring rule in the indictment context as a requirement of due process under the U.S. Constitution, Amendments 5 and 14.
	4. In addition, the failure to include in the indictment aggravating circumstances -- which enhance potential punishment of first degree murder from life imprisonment to death -- violates the Tennessee Constitution, Article I §8 and §14.  In Tennessee, there is “an absolute right to a criminal accusation by a grand jury.”  State v. Brackett, 869 S.W.2d 936, 938 (Tenn. Crim. App. 1993).  The Tennessee Constitution’s guarantees of  prosecution only by grand jury in Article I §14 and due process found in Article I §8 are synonymous with, or more expansive than, the U.S. Constitution’s corresponding guarantees in the Fifth and Fourteenth Amendment.   Riggs v. Burson, 941 S.W.2d 44 (Tenn. 1997); Newton v. Cox, 878 S.W.2d 105, 110 (Tenn. 1994);Burford v. State, 845 S.W.2d 204, 207 (Tenn. 1992); State v. Hale, 840 S.W.2d 307, 312 (Tenn. 1992). The Supremacy Clause of the United States Constitution, Art. VI, cl. 2, which provides that the federal constitution is the ultimate "Law of the Land," “essentially mandates that no Tennessee law, whether statute, rule, or constitution, may operate to deprive a Tennessean any right afforded by the federal constitution.”  Planned Parenthood of Middle Tennessee v. Sundquist, 38 S.W.3d 1, 12 (Tenn. 2000), citing Miller v. State, 584 S.W.2d 758, 760 (Tenn.1979).  Thus, the rule of Apprendi/Ring must be applied in Tennessee at least to the extent as provided in the federal courts.
CONSTITUTIONALITY OF THE TENNESSEE INSANITY DEFENSE        
	5.  Appellant respectfully submits that the Court employs an incorrect standard in affirming the constitutionality of the Tennessee insanity defense statute.  The Court, citing Patterson v. New York, 432 U.S. 197 (1977), states “placing the burden of proving an affirmative defense upon a criminal defendant will be unconstitutional only if proving the affirmative defense necessarily negates an essential element of the offense.”  The Court’s approach deviates from the framework of the analysis required under In Re Winship, 397 U.S. 358 (1970) and Mullaney v. Wilbur,  421 U.S. 684 (1975).  This framework requires a court to first determine whether a given ingredient is an element of the criminal offense and then determine whether the legislature  has defined the elements of the crime so as to presume a fact essential to guilt and then compelled the accused to negate that element of the crime.  See, e.g.,  Gall v. Parker, 231 F.3d 265, 287 (6th Cir.2000).  
	6.  The scope of Patterson has been limited in recent years.  See, e.g., Cooper v. Oklahoma, 517 U.S. 348 (1996) (distinguishing Patterson by noting that the power to regulate procedural burdens is subject to proscription under the Due Process Clause when the procedures do not sufficiently protect a fundamental constitutional right).  Cooper was a unanimous decision striking down an Oklahoma statute which required a defendant to prove by clear and convincing evidence his incompetency to stand trial.  The sanity or insanity of a criminal defendant – his ability to form criminal intent – is historically linked with competency (which is a modern term for sanity to stand trial, as opposed to sanity at the time of the offense).  Appellant submits that sanity is such a fundamental requirement under the criminal law that it is more closely analogous to competency than to a mere “affirmative defense.”   
 	7.  The validity of Patterson is even further implicated by the limitations imposed by
Apprendi, supra, on the ability of states to define away essential elements of a crime.  This impact was recognized in Gall v. Parker, supra, at 287 n.3:
The Patterson Court cautioned that "there are obviously constitutional limits beyond which the States may not go" in defining the elements of a crime.  432 U.S. at 210, 97 S.Ct. 2319.   The recent Supreme Court decision in Apprendi demonstrates that in some circumstances, courts should look at factors beyond a state legislature's use of "labels" in determining if a given ingredient is a criminal element that implicates Winship and other protections.   See 120 S.Ct. at 2355-56. See also Jones v. United States, 526 U.S. 227, 243, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (noting that "a State cannot manipulate its way out of Winship").

Appellant respectfully submits that the combined effect of the Tennessee legislature’s definitions of first degree murder and insanity and the Court’s interpretations of those statutes is to define away an essential mens rea element of murder in violation of the federal constitution’s Due Process Clause.  Further, since this burden-shifting deprives Mr. Holton, a capital defendant, of a viable guilt-phase defense, the Eighth Amendment is also implicated.  See Beck v. Alabama, 447 U.S. 625 (1980).  

FUNDAMENTALLY FLAWED PROPORTIONALITY REVIEW
	8.  Appellant submits that the method and substance of the mandatory proportionality review used in upholding his death sentence violate the state and federal constitutions.  Although comparative proportionality review has not been found to be required by the federal constitution, since the legislature has mandated this review it must be conducted in a manner consistent with the federal constitution.  See Evitts v.Lucey, 469 U.S. 387, 401 (1985) (“when a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution - and, in particular, in accord with the Due Process Clause”).  In his dissent in this case, Justice Birch identifies several critical problems with the proportionality analysis in this case which appellant submits serve to highlight the arbitrariness, unfairness and insufficiency of the process.  
	9.  In addition to the flaws described by Justice Birch, the proportionality analysis in this case is particularly arbitrary and violative of due process because the Court fails to consider any mitigating circumstances in determining the appropriateness of executing Mr. Holton.  The problem is two-fold: 1) the Court refuses to consider the mitigating circumstances which are in the record and 2) relies upon the reasoning of Zagorski v. State, 983 S.W.2d 654 (Tenn. 1998)3 in considering proportionality while excluding mitigation from consideration in this case and in the case of other members of the pool who did not present mitigation under the Zagorski rule. 
	10.  On Page 14 of its decision the Court states that appellant presented “abundant evidence” during the guilt phase trial regarding Mrs. Holton’s parental inadequacies and Daryl Holton’s love for his children.  The Court determined that the jury had heard this evidence and reconciled it with the state’s version of events and Mr. Holton’s defense.  Thus, since it is evidence relevant to the degree of culpability, the Court has per se found the evidence to be mitigating in nature. Yet, although this is recognized in the section of the opinion rejecting defense counsel‘s request that the Court consider the Zagorski waiver in assessing the existence of residual doubt regarding the appropriateness of the death sentence in this case, during the mandatory proportionality review the Court cites no mitigating circumstances in its analysis other than his cooperation, confession, and good behavior while incarcerated.
	11.  The devastating impact of allowing a waiver of mitigation under Zagorski is even more lethal to a constitutionally sufficient proportionality review.   In Zagorski this Court determined that a capital defendant will be allowed to waive the presentation of  mitigating circumstances at his sentencing phase.  In reaching its unanimous decision, the Court relied upon the Code of Professional Responsibility4, which does not specifically address this issue, and a Justice William Brennan quote5 stating that a defendant’s choice of self-representation, even if detrimental, must be honored out of “that respect for the individual which is the lifeblood of the law.” Id. at 658.  This quote is originally from Illinois v. Allen, 397 U.S. 337 (1970) (regarding defendant’s Sixth Amendment right to be present in the courtroom unless disruptive), and is repeated in Faretta v. California, 422 U.S. 806 (1975) (Sixth Amendment right is personal, so a defendant may waive counsel and represent himself).  The Court established a procedure for the waiver and specifically stated that the trial court “shall not inquire of counsel as to the content of any known mitigating evidence.”  Id. at 660.  Thus, no provision is made for an offer of proof, sealed or otherwise, to make a record of the mitigating circumstances which might be presented.
	12.  Application of Zagorski to Mr. Holton’s prosecution  has numerous effects: 1) once he was found guilty of first degree murder, he was almost certainly guaranteed a death sentence since the jury was denied the ability to consider all the available mitigation to be weighed against aggravation; 2) the jurors and judge who sentenced Daryl Holton to death do 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, thus violating a fundamental principle of law, see, e.g., Penry v. Lynaugh, 492 U.S. 302 (1989); 3) there is no record of all the available mitigating circumstances so this Court is unable to conduct an adequate individual proportionality analysis, as is required by Tenn. Code Ann. § 39-13-206(c)(1)(D); and 4) without a record of mitigating circumstances in cases in which a defendant waives mitigation – like this one – the pool of cases for comparative proportionality review is incomplete and thus accurate comparative review in every Tennessee death case cannot be accomplished.     
	13.  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). The law is quite clear 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.")
	14.  By precluding the Court from conducting an adequate proportionately assessment, the   Zagorski waiver also undermines the public’s interest in reliable death penalty determinations.  See People v. Deere, 710 P.2d 925 (Cal. 1985).  Mitigation information is critical to appellate proportionality review which is a part of reliable sentencing procedures.  Id.; State v. Koedatich, 548 A.2d 939, 997 (N.J. 1988).  “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 Tennessee public has a similar interest in a proportionality assessment which includes all mitigating evidence which is available. 
DEATH SENTENCE IN THIS CASE VIOLATES
FUNDAMENTAL RIGHT TO LIFE

	15.  Daryl Holton submits that the Court is incorrect in upholding the Court of Criminal Appeals decision denying that Mr. Holton has a fundamental right to life guaranteed by the Tennessee and U.S. Constitutions since a death penalty in this case does not further a compelling state interest.

CONCLUSION
	WHEREFORE, and for all the reasons stated above, the Appellant, Daryl Keith Holton, respectfully moves the Court to grant this Petition for Rehearing, pursuant to Tennessee Rules of Appellate Procedure, Rule 39.    
									Respectfully submitted,

									______________________
									JOHN E. APPMAN
									BPR# 2809
									ATTORNEY AT LAW
									P.O. BOX 99
									JAMESTOWN, TN 38556
									(931) 879-7619

CERTIFICATE OF SERVICE

	The undersigned hereby certifies that a true and exact copy of this petition has been served upon counsel for all parties by delivery to the offices of said counsel or by placing in the U.S. mail addressed to said counsel, postage prepaid.
	
	This the ___ day of January, 2004.

							_____________________________________
							John E. Appman

							Counsel for Darryl Keith Holton