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IN THE SUPREME COURT OF TENNESSEE AT JACKSON
April 4, 2001 Session HECK VAN TRAN v. STATE OF TENNESSEE
Appeal by Permission from the Court of Criminal Appeals Criminal Court for Shelby County No. P-14409 Hon. John P. Colton, Judge

No. W2000-00739-SC-R11-PD - Filed December 4, 2001

WILLIAM M. BARKER, J., with whom JANICE M. HOLDER, J., joins, concurring in part, dissenting in part.

With its decision today, a majority of this Court has effectively permitted a defendant, who was sentenced to death in 1989 for the brutal execution of a 74-year-old grandmother, an opportunity to escape the ultimate punishment for his actions solely because he has managed to obtain a lower score on a revised I.Q. test than he was previously able to do. Before today, the Constitution of this State has never been held to provide blanket capital immunity to a class of persons based only on the fact of low intellectual ability and deficits in adaptive behavior. Instead, the Constitution has barred such executions only when the defendant's mental condition displaces the following capacities: (1) the cognitive capacity to appreciate that certain action will lead to the death of others; (2) the moral capacity to appreciate the wrongfulness of murder; or (3) the volitional capacity to behave in a lawful manner. By permitting Heck Van Tran the opportunity to escape his capital sentence because of his new score on an I.Q. test, the majority ignores that Heck Van Tran has not argued that his alleged condition ever affected his abilities to appreciate that certain actions would lead to the death of others. The majority ignores that Heck Van Tran has not argued that his alleged condition ever affected his ability to appreciate the wrongfulness of murder. The majority also ignores that Heck Van Tran has not argued that his alleged condition ever affected his ability to behave in a lawful manner. Instead, the majority holds that Heck Van Tran should escape his capital sentence because his new score on an updated I.Q. test removes his moral blameworthiness for the senseless and intentional execution of an elderly victim, Kai Yin Chuey. I simply cannot agree. Moreover, the majority has completely disregarded the petitioner's claims alleging "new scientific evidence establishing that [he] is actually innocent of the offense or offenses for which [he] was convicted" under Tennessee Code Annotated section 40-30-217(a)(2). Instead, the majority has

determined that the motion to reopen is "more appropriately" based on the provisions of Tennessee Code Annotated section 40-30-217(a)(1), which provides in pertinent part that the "claim in the motion is based upon a final ruling of an appellate court establishing a constitutional right that was not recognized as existing at the time of trial." Although the majority has extended this very narrow basis to reopen to apply in this case, the constitutional issue now raised for the first time in this motion to reopen has clearly been waived by the petitioner's failure to raise it in his original postconviction petition. See Tenn. Code Ann.

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