### FILED June 25, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE TENNESSEE COURT OF CRIMINAL APPEA LS AT KNOXVILLE SPECIAL SEPTEM BER SESSION, 1998 NICHOLAS TODD SUTTON, ) C.C.A. NO. 03C 01-9702-CR-00067 ) Appellant, ) MORGAN COUNTY ) (No. 7555 Belo w) VS. ) ) HON. GARY R. WADE, SPE CIAL JUDG E STATE OF TENN ESSEE, ) ) Appellee, ) (Post-Co nviction, Death Pen alty) )
ON APPEAL FROM THE JUDGMEN T OF THE CRIMINAL COURT OF MORGAN COUNTY

FOR THE APPELLANT : FOR THE APPELLEE : JOHN E. ELDRIDGE JOHN KNOX WALKUP ELDRIDGE, IRVINE & HEN DRICKS Attorney General & Repor ter Suite 350, Main Place 606 Main Street MICHAEL E. MOORE P.O. Box 84 Solicitor General Knoxville, TN 37901-008 4 JOHN P. CAULEY MICHAEL J. PASSINO Assistant Attorney Gener al LASSITER, TIDWEL L & HILDEBRAND 425 5th Avenue North 213 Fifth Avenue, North Nashville, TN 37243-0493 Nashville, TN 37219-1901 CH AR LE S E . H AWK District Attorney General D. ROGER DELP Assistant

District Attorney

General FRANK A. HARVEY Assistant

District Attorney

General P.O. BOX 703 Kingston, TN 37763-0703

OPINION FILED __________________________ AFFIRMED JOHN K. BYERS, SENIOR JUDGE1 O P I N I O N

In this capital case, the

petitioner, Nicholas Todd Sutton, appeals as of right from the judg ment of t he Criminal Court of Morgan County denying hi s post-conviction petition. In 1986, the petitioner was convicted of fir st-d egree murder and sentenced to death by electrocution. The petitioner’s conviction and sentence were affirmed on direct appeal by the Supreme Court. See State v. Sutton , 761 S.W.2d 763 (Tenn. 1988), reh’g denied (Tenn. 1988), and cert
. denied , 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 796 (1990).

On Decembe r 14, 1990, the pe titione r, thro ugh coun sel, fil ed a petition fo r post-convictionrelief, and an amended petition was filed onJanuary 2, 1992. Thereafter, Senior Judge William H. Inman wasappointed to hear the petition on November 18, 1994. In March 1996, Judge Inman granted the petitioner’s m otion requ esting that he recuse himself,and Judge Gary R. Wade was appointed to hear the petition. The post-conviction hearing was held over a per iod of five days from October 9 to October 14, 19 96. On October 23, 1996, the post-conv iction court denied post-c onviction relief.
On appeal, the petitioner raises the following issues:

1. Whether the state abused the discovery process, misleadand mi s directed the energies of petitioner’ s attorney, and concealed the state’s major witnesses, and whetherthe postconv i ction court erred in concludi ng that the issue had been previously determin ed. 2. Whether the trial court failed to regulate the discovery process, and whether thepost-conviction court erred in concluding tha t the issue had been waive d or previously det

ermined. 3. Whether excessive courtr oom secur ity denied the p etitioner his right to a fair trial, and whether the post-conviction co urt erred i n concluding that the issue had been waived or previously determined. 4. Whether the petitioner was denied the effective assistance of counsel at the guilt and penalty phases of his trial. 5. Whether the state falsely portray ed inmate safety and security at the prison.2 6. Whether the state manufactu red a prior statement by inmate Lumbert for the post-co nviction hearing, and whether the postconviction court err

ed by failing to address the issue. 7. Whether the s t ate failed to disclose exculpatory evidence in violation of Brady

v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) and Giglio v. United S tates , 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). 8. Whether the death p enalty statutes are unconstitutional. 9. Whether imposition of thedeath penalty in this case would be arbitrary and capricious.
Having reviewed the recor d, including the

record from the petitioner’s direct appeal, we affirm the judgment of the pos t-conviction court.
Background

The proof, as set forth in the Supreme C ourt’s decision, State v. Sutton , 761 S.W.2d 763, 765-66, est ablished that the petitioner an d co-defendants Charles A. Freeman and Thomas A. Street were resi dents of Guild 6at the Morgan County R egional Correctional Facility (“MC RCF”) on the day of the murder. The vi ctim, Carl Estep, was a resident of Guild 5.

On January 15, 1985, when Es tep was murdered, there was no correctional officer in Guild 5between 9:30 and 10:00 a.m. During a r outine "shakedown" after 10:00 a.m., correct ional officers found the body of Estep lying on the lower bunk of his cell. There were signs of

a struggle and blood w as observed on the

wall, the bed cover

s, and
on Estep's body. Attempts to revive Estep were unsuccessful. The entire facility w as then "locked down," and all inmate s in Guild 5 were int

erviewed.
Estep, who had been serving a s entence f or child molesting, had been stabbed thirty-eight times in the chest and neck. Most of the wounds were superfic ial, but nine were potentially fatal, having penetrated Estep's lungs, vena cava, and carotid artery. The exami ning pathologist testified that this latter wound would have caused death i n a3

matter of minut es. Ther e were seven defens ive wounds on Estep's hands and right arm and a wound to the back of his head caused by a blow. It was t he opinion ofthe pathologist that from the si ze of t he wounds, two knives had been used by Estep's attackers. On the bottom bunk, investigating officers found two homema de knives, which matched the wounds on Estep's body . Alater investigation of the cell uncovered a third knife hidden under a lamp beside Este p's bed.

The testimony of four

inmates, sometimes contradictor y and evasive, linked the petitioner to the murder. The first t o testif ywas Harold Meadows, a resident of Guild 5. He testified that he was s itting in the day roo m ar ea when he saw the petitioner and Streetenter the guild and go s traight to Estep's cell. He stated that each day between 9:30
a.m. and shortly after 10:00 a.m. there was a periodof five to ten minutes when no g uards
were in Guild 5 du e to a duty ch ange. It was during this time on January 15, that he observed the petitioner and Street enter the guild. W hen they entered Estep's cell, his roommate immediately came out and shortly thereafter the volume of the tv or radio increased, and Meadows heard a scream, and the petitioner and Street came out. When questioned by correctional officers immediately after the incident, Meadows told them what he had seen and identified the petitioner and Stree t from a p hotograp hic line-u p. Meadows further testified that on Sunday, Januar y 13, he had seen Estep havi ng a "p hysic al discussion" with the petitioner and Street, during whi ch the petitioner held a knife to Estep's throat.

Another

resident of Guild 5, Estel Gr een, testified t h at he was standing in front of the door to his cell, right next to E step's cell, when he sa w the petitioner and another inmate go inside Estep's c ell. Green then went

into his cell. When he came back out, he saw the other men in the guild mov ing toward the back away from Estep's cell. Green moved away with them and heard Estep "holler out. He said, 'Don't do that; please don't do that.' and then he hollered louder, he holler ed, 'Somebody help me; somebody please help me.' and that was all I heard." Green was not able to see who left Estep's cell.4 Ralph Edward Scates was a resident of Guild 3, but he w orked as a laundry
man in Guild 1. Scates testified that he had a casual conver sation with Street w

hile Street
was co nfined to Gui ld 1 for investigativ e purposes after the killing . Street admitted to Scates that "he [Street] cut him ... he stuck him, cut his throat." Street said that homemade kniveshad been used and that he had tried to flush his down the commode in his cell in Guild 6. Scates stated tha t the petitioner had told him, "The SB got exactly w hat he deserved."

The last inmate totestify for the state was Cary

Scoggins. He testified that Estep was a marijuana dealer at the facility and had so ld th e defendants some "bad merchandise" and had refused to refund thedefendants' money. He testified th at after the defendants took Estep's watch and so me other articles, Estep had threatened to kill the petitioner. Scoggins, a resident of Guild 6, happened to be in Guild 5 on the morning of January 15 between 9:30 a.m. and 1 0:30 a.m. He stated that he saw the petitioner, Street, and Freeman come into the guild a nd enter Estep's cell. H e looked through the window in the door of Estep's cell, a vertical window four inches by th irteen inches and saw all three defendants standing in front of the bunk bed with their backs to the window. He saw Estep tryto get up from the bottom bunk and the petitioner and Freeman pulled kni ves . The petitioner started to stab E step, who screamed. Scoggins stated that the petitioner "just kept on stabbing" about six teen times. The three

defendants then washed their hands in the sink. Scoggins then moved away fromthe door and left the guild before the defendants did.

In order to contradict Scoggins' testimony , co-defendant Freeman presented the testimony of Gary Lumbert, Scoggins' cellmate. Lumbert testified that Scoggins was working with him in the prison librar y at the time Estep was murdered.

The state recalled James Worthington, the admin istrative assistant to the warden at the time of the killing, and he testified that he had investigated the murder. He stated that Lumbert had told him that he was present in Guild 6 immed iately after Est e p5

had been killed, and that h e observed th e petitio ner and S treet en ter the gu ild, remo ve theirclothes, and place their clot hes in the laundry. Lumbert also told Worthington that the petitioner bragged "about s tabbing Carl Estep tw

enty-some times."

On January 15, two gar bage ba gs f ound outside Guild 8 were brought to Worthington, one containing trash and the other prison clothing. A telephone p ass for Freeman was found in one pair of the pants. F.B.I.analysis of the debris from the clothing in the garbage bag reveal ed a hair consistent with that of the victim on a pair of button-fly jeans and a hair consiste nt wi t h that of Freeman on one of the jackets. A f orensic serologist employed by the T.B.I. testified that she was able to identify a human blood stain matching the victim's blood ty pe on the sleeve of one of the jackets, one of the knives,and a work shirt. She also foundhuman blood on one of the jackets, a pai r of zipper-fly blue jeans and an elastic bandage. Tests were inconclusi ve as to whether human blo od was on the other knife.

Based on this

proof, the jury found the petitioner guilty of first-degree murder.

At the sentencin g hearing, the state presented proof that the petitioner had previously been conv

icted of first-degree murder. The defense p resented the testimony of Charles Burchett, the Di rector of Student Conduct at the University of Tennessee, his wife, a semi-retired school t eacher, and their son, Charl es Burchett, Jr., who w as a real estate agent. The Burchetts testified that they had known the petitioner since he was in high school and that they vi sited him in prisonregularly. The defense also presented the testimony

of two inmates. Eddie O’Donn ell, the petitioner ’s cell mate in Guild 6, testified that on January 14, while they wer e eating in the dining hal l, the petitioner asked O’Donnell to tell him if Estep came towar d him. When E step came in, O’Donnell nodded at the petitioner, who stood up. Estep then walke d the oth er way. James “Bu ddy” Williams, also
an inmate, testified that he did not have any conversations wit h t he petitioner about this mat ter, despite having prev iously told defense counsel that he had in fact ha d conversations with the petitioner. Williams refused to answ er any further questions

.6 The jury se ntenced the petitioner to death by electrocution based on its finding that there were no mitigating circumstances suffici ent to ou tweigh the three aggravating

circum stances : (1) pr ior convicti on of a

vio lent felony, (2) the murder was heinous, atrocious, or cruel, and (3) the murder was committed while the petitioner was in a place of lawful confinement. T.C.A. § 39-2 -203(i)(2), (5), (8) (repealed 1989).

Standard of Revi ew

In post-convic tion p roceedings, the petitioner must prove the allegati ons contained in his pet i tion by a preponderance of the ev idence. Oliphant v. State , 806 S.W.2d 215, 218 (Tenn . Crim. App. 1991). Findings of fact and conc lusions of law made bythe trial court are g iven the weight of a ju ry verdict, and this Court is bound by those findings unless the evidence contained in the record prep onderates otherwise. Butler v. State , 789 S.W.2d 898, 899 (Tenn. 1990). This Court may not reweigh or reev

aluate the evidence or substitute its inference s for tho se drawn by the tri al court. Questions concerning the credibility of witnesses and weight and value to be given their testimony are forresolution by the tri al court. Blac k v. State , 794 S.W.2d 752, 755 (Tenn. Crim. App. 1990).

I. Prosecutorial Miscon duct

In his first issue, the petitioner contends that he was denied a f ai r trial because the state abused the discover y process, mislead

and misdirected the energi es of petition er’s atto rney, and concealed its major witnesses. The petitioner submits that the post-conviction court

erred in finding this i ssue to be previously determined.
Specifi cally, the petitioner argues that he was unable to establi sh hi s prosecutorial misconduct claim on direct appeal because he was denied access to material documents which would hav e demonstrated an intentional deci sion by the stat e to misdirect defense counsel. Second, the petitioner argues that he was unable to show in7

the prior proceedings how he was prejudiced b

y the intentional wrong doing of the state because his attorney could not challenge his own ineffecti veness without crea ting a conflict of interest.

Under

the Post-ConvictionProcedure Act govern ing this petition, a peti tioner could raise all consti

tutional cl aims except those which had been previously det ermined, waive d, or barred by the statute of limitations. The statutory definitions u nder t h e applicable Post-Conviction Procedure Act for previous determination and waiver wer

e as follows:
(a) A ground for relief is “previously determined” if a cou rt of

competent j urisdiction has ruled on the merits after a full and fair hearing. (b)(1) A ground for

relief is “waived” if the petitioner knowingly and understandingly failed to present it for determination in any proceeding before a cou rt of competent jurisdiction in which the ground could have been pr esented. (2) There is a rebuttable pres umpti on that a ground for relief not raised in any

such proceeding whic

h was held was w

aived.
T.C.A. § 40-30-112 (1990).

In House v. S tate , 911 S.W.2d 705 (Te nn. 1995), our Supreme Court held that “a ‘full and fa ir hearing’ sufficient to support a finding of previous determination occurs if a petitioner is giv

en the oppo rtuni ty to present proof and argument.” Id . at 706. The burden is on the post-conviction petitioner to allege facts to overcome the applica tion o f procedural barriers. Smith v. State , 814 S.W.2d 45, 49 (Tenn. 1991); see also T.C.A. § 40-30-104(10)(1990).

T he post-conviction cour t concluded that the petitioner failed to rebut t h e finding that the issue had be en previously determi ned on direct appeal, wher e our Supreme Court held:8 The defendant Sutton next alleges that he was denied the right to a fair trial because of the conduct of the State in not supplying him s ufficient notice of the witnesses

which would be

used against him. He arg ues that by providing lists of numerous prospective witnesses, ranging from 80 to 47 names, many of whom we re inma tes scattered throughout the State correctional sy stem and most of whom the State, defendant alleg es, had no intention of calling, denied him his right to effect ive cou nsel because defense counsel was un able to intervie w all these witnesses and invest igate the case ful ly. Nothing in the record supports thi s allegation. When de fense counsel pointed o ut the problems he was hav ing in reaching all

the witnesses, the court granted a continuance.

Sutton , 761 S.W.2d 763, 769.

Despite the petitioner’s claims, a full review of the record does not establish intentional wrongdoing on the par t of the state. Worthington testified tha t he was responsible for the prison’s internal investigation into the murder of Estep. On the day of the murder, Worthington and Clarence Robb ins , the investigator for the district attorney general’s office , conduc ted inte nsive interviews of ev eryone in Guild 5. Worthingtonwas responsible for transcri bing and cataloging al l of the statements.

In the cour

se of th e investigation, Worthington submitted to the district attorney general’s office a list of possible witnesses and a su mmary of each witness’ potential testimony. Worthington kept a noteb ook which included summaries, statements, and documents regarding each person who was i nterviewed. In addition, he kept miscellaneousfi les that included rap sheets, different info rmation, institutional file documents on each of the defendants and some of the witnesses , and notes he had made during the investigation and interviews.

The list of potential witnes ses was typed and sent t o the distr i ct attorney general’s office around June 3, 1985. Worthington testified that the entire list was given to th e de fense as a good faith effort so the defense w ould have a complete list o f the inmates who had been interviewed. A shorter list was given in August 1985,and another
was given in September 1985. Worthington kep t inmates on the witness list because he thought that once some of them were released from p rison they might be w illing to tal k

.9

He also believed that the defense at torneys should be

given an opportunity

to speak with the se inmates because they might tell defense counsel more tha n they would tell th e prison officials.

Roger Delp, an assistant

district attorney g eneral who prosecuted the c ase, testified that the long list of potential w i tnesses was given to defense counsel to ensure that the trial judge would not refuse to allow a witness to testify because the na me had not been given to the defense. The state was concerned that some inm ates who had been in
a position to have information about the homicide bu t were not talking might be willing to talkto defense counsel or might deci de to talk to the state at a later date. The state was also trying to prot

ect inmates from potential retali ation.

The petitioner was repre sented at trial by John Appman. Because the state’s list of potential witnesses w as long and because the inmates w ere constan tly being transferred to other facilities, Appman spent unnecessary tim e and t rouble investigatin g the case. Bruce Fox, appointed counsel for co-defendan t Street , confirmed that it was difficult to prepare f or trial beca use the state’s witness list was so exten sive. He and Appman did most of the preparation for tria l, traveling in Appman’s private plane to interview witnesses who were incarcerated at various correctional facilities a c ross the state. They were also assisted by Appman’s paralegal.

In order to tell which witnesses the state was g oi ng to call and to have an understanding of the st ate’s case, Appman believed he needed to review W orthington’s investigativ e records. However, even if he had been able to obtain a shorter list o f potential witnesses, Appman testified that he still w ould have attempted to talk to anyone who might have benefitted the case. He and Her b Moncier filed a motion with the trial court in an at

te mp t to g et

Wo rthington’s notebook, however, the moti on was denied. Thereafter, they filed a lawsuit in the chancery court of Davidson County seeking to force Worthington to turn over his inv estigative records

under the Public Records A ct. Relief was denied by the chancery cour t and by the Supreme Court on ap peal. See Appman v.10

Worthington , 746 S.W.2d 165 (Tenn. 1987).

W ithout W orthington’s notebook, Appman testified tha t he was unable to fully advise the petitione r regarding t h e strength of the state’s cas e. Although the petitioner testified that he would not have accepted the state’s offer of a life sentence because it wa s cond ition al on offers to the co-defendants, Ap pman believed that the information in Worthington’s notebook would have assi sted him in his attempt to convince the petitioner to accept the offer. Despite the foreclosure of reviewing Worthington’s noteboo k, Appman
was able to interview all the inmates who eve ntually testifiedat trial on behalf of the state. He was also able to review each of these witnesses’ statement to Worthington as Jencks material prior to cross

-examination.

A review of the

testimony and of Worthington’s notebook does not reveal that the state intentionally mis directed defense cou nsel, and this argument fails to rebut the statutory presumption that this issue has been previ ously determined.

Next, the petitioner contends that th e is sue should not be barred as previouslydetermin ed becau se counse l could no t have raised his own ine ffecti ve assistance of counsel . Howev er, the issue of whether the state’s actions denied the petitioner

the right to effective couns el was raised and addres sed by the Supr

eme Court. Sutton , 761 S.W.2d 763, 769. Moreover, the record reflects that Appman took every action possible to obtain Worthington’s notebo ok, including the filing of a civil law suit. Accordin gly, even if the issue was n ot previously deter mined, the petitioner has failed t o show that counsel’s actions w ere deficient. See Baxter v. Rose , 523 S.W.2d 930 , 93 6 (Tenn. 1975).
II. Regulation of D iscovery Proc ess

The petitioner contends that the post-conviction court erred in findingthat the issue of whether the trial cour t failed to regulate the disc overy process w

as previou sl y11

determined, waived, or wi thout merit. As to a finding of waiver, the petitioner contends that it was not raisedd ue to ineffective assistance of coun sel and that the material facts supporting his claim were not available despite efforts to o btain access to the information. Furthermore, the petitioner contends that if th e trial court had at a minimum revi ewed Worthington’s notebook or included it in the record, it would hav e shown that the state had in fact prepared a shorter, detailed witness list which set forth the antici pated witnesses at trial and their ant icipated testimo ny.

As noted in the Supreme Court’s opinion, “[t]he evidence in the recor d does not preponderate against the tr ial court's finding on the motion for new trial that there was
no bad faith on the State's part in r esponding to the discoveryrequests, that the defendant
was not dama ged by any of the dela ys in this case, andthat under the circumstances all matters were add ressed within a reasonable time.” Sutton , 761 S.W.2d 763, 768. Accordin gly, this issue has been previousl y determined. See T.C.A. § 40-30-112(a)(1990). Furthermore, the petitioner cannot succeed on a claim of ineffective assistance of counsel because the Supreme Court ruled that matters o f discove ry were hand led appro priately. Thus, the petitioner has no t shown prejudice. Strickland v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 2067, 80 L.Ed.2d 67 4 (1984).
III. Courtroom Security
Next, the pe t itioner contends that the post-conviction court erred in concluding that the issu e of excessive security in the courtroom w as previously deter

mined, waived, or

without merit. Inhis post-conviction petition, the petitioner cl aimed that the state used the extr aordinary courtroom security as a prop, that he was denied a fair trial as a result of the excessive courtroom securit y, that the trial court failed to reg ulate the excessive courtroom security, and that defense counsel was ineff ective in failing to limit the excessive security, object to its use as a prop,or properly present the issue in the motion for new trial and on direct appeal.12 Regarding this issue, Charles E.Jones, now warden at M CRCF, testified that he was in charge of

courtroom security dur ing the petitioner’s trial. According to Jones, the goal was to provi de security during the trial and to ensure that inmates were transported in a timely manner, however, there was no written plan or order. Uniformed officers armed with shotguns were statio ned at each corner of the courthouse. Two officers w ith a hand h eld metal detector were stationed outside the door to the cour troom. Inside th e courtroom, officers were stationed at each door. Three more officers wer e stationed in the front row directly be hind the defendants. One officer was p ositioned tobackup the three officers by the def endants , one was ne xt to the ju ry, and two were in the balcony. Some of the officers w

ere in unifor

m, and all the

officers we re arme d with the exception of the three officers directly behind the defendants. One street by the courthous e was blocked off, and the officers used it for parking and unloading inmates.
Judge Eugene Eblen, who presi ded over the trial, testified that the officers in the courtroom were not overly conspicuous. Considering that there were three inmates
on trial and that many of the witnesses w ere also inmates, Judge Ebl en believed that the security was appr

opriate.
Contraryto this te stimony, Fox, counsel for co-defendant St reet, testified that the courthous e was an “armed fortress.” Charles Burchett, w

ho attended the trial and testified on behalf of the petitioner at the sentencing hearing , testified that he was amaz ed at the number of armed officers.

On the general issue

of courtroom security, th e post-conviction cour t made these findings:

Even if the issue had not been previously determined or waived,the proof at the evidentiary

hearing simply did not e

stabli sh this

as a gr ound for r

elief. Obviouslycourtroom security is necessary whenthree prison inmates are on trial. All of the key witnes ses were inmates as w

ell. The environment

at the trial, due to all this, was certainl y notideal. Nonetheless, the tr ial court took measures to reduce any prejudicial effect. The defend ants wore certain clot hes, their hands were free, and measures were taken to hide fro m th e jurythe shackles on their feet. M oreover, Morgan County, with tw o state13 prison facilities in 1986, is mor e likely than other counties to be desensitized to a possibly coerciv

e atmosphere.

Before introducing the homemade knives into evidence, Genera l H arvey placed them on the defense table so that defense counsel w ould have an opportunity to examine the knives. This wa s done even though defense counsel had been instructed to onlyuse felt tip pens, not pencils,so th at the defendan ts could not use the pencils as weapons in taking h ostages. Appman t estifie d that he reacted b y jerking awa y fro m the table because he was

afraid of becoming a hostage. According to Appman, it was a tense moment in the courtroom. Being startled, Appman did no t make a motion for a mistrial or raise the issue at that time.

Judge Eblen testified that it is common practice for lawyers t o approac h opposing counsel and present an exhibit before it is introduced into ev idence. When the prosecutor

placed the homemade knives on the defense table, Judge Eblen saw Appman jump, and he heard an officer pull a gun,although he did not see an y guns d rawn. According to Judge Eblen, the courtroom quickly quieted down, and the jur y seemed to get
a “smile” out of the incident. Judge Eblen believed that he told the prosecutor

not to do it again.

The post-conviction court accredited the testimony of Judge Eblen on this issue:
Moreover, Judge Eblen testified that this was really “not a big event in Morgan County” and that the “officers were not overly conspicuous.” While Ju d ge Eblen expressed some concer n about the incident wherei n an assistant district attorney g eneral placed several knives at the table occupied byt he defen dants and thei r counsel, J ohn Appman reac ted with s

ome surprise. The record demonstrates, how ever, that the re were curat ive instructions. It was Judge Eblen’s opinion that the incident did not affect the results of the trial. This court accredits that accou nt.
Regarding the placing of knives on defense table, the post-conviction court properlyheld that the issue has been pre vious ly d etermined. T.C.A. § 40-30-112(a)14

(1990). In fact, Jones was calle d to testify about

the courtroom security at the hearing on the motions for new tri al. Jones, who was in c harge of courtroom security, testified that there were ten t

o fourteen gua rds in the c ourtroom, some of whom were in civilian clothes. While some of the guards had pistols, no one in the courtroom had a shotgun . When the kniveswere placed on th e table, the officers in the courtroom reached f or their guns, however, no pistols

were drawn. On di rect appeal, the Supreme Court ruled:

The defendant also alleges prosecutorial misco nduct by the Assistant District Attorney General. A knife, identified by State's witness James Worthington as a we apon fou nd in Estep's cell after the mur der, was placed on the defense table for

inspection by counsel befor e passing it to the jury. Seeing the knife within reach of the defendants, anumber of the correctional officers in the courtroom respondedby reaching for their weapons. Defendant insists that t he reactions by the guar ds prejudiced him and depriv ed him of the "physical indicia of inn ocence." After the incident, the c ourt instructed the State to have defense c ounsel examine the weapons at the State's table. The jury knew that the defendants wer e inmates and it probably came as no surprise to the jurors that they would be closely w atched and guarded. The record reflects that only one suc h incident occurred. We do not find that this incidentcould have so prej udiced the defendant as to deny him a fair trial. We find no reversible error.

State v. Sutton , 761 S.W.2d 763, 769.

Furthermore, as held by the post-conviction co urt, all other claims regarding excessive security in the cour troom were waiv

ed by the petition er’ s failure to raise them previousl y. T.C.A. § 40-30-112(b)(1) (1990). Finally, the petitioner has failed to meet his burden to show inef fective assistance of counsel regarding this issue. As stated earlier,
on appeal from the denial of post-conv iction relief, the findings of fact and conclusions of law made by the tri al cour

t are gi ven the weight of a

jury verdict, a nd this Court is bound bythose findings unless the ev idence contained in the recor d preponderates otherwise

. Butler v. St ate , 789 S.W.2d 898, 899. Questions concerning the credibility of witnesses and weight and value to be given their testimony are for resolution by the trial court. Black v. State , 794 S.W.2d 752, 755.

In the p res ent case, the post-convic tion court accredited the te stimony of Judge Eblen regarding

whether the security

was excessive

or prejudicial at

the petitioner’s15

trial. Having review

ed the record, we do not find that the evidence preponderates against this finding, and thus, the petition er has failed to establish prejudice

. Stricklan d v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 2067. This issue is without merit.

IV. Ineffective A

ssistance of Counsel

The petitioner raises sev eral issues regardi ng the effectiveness of defense counsel pre-trial, at trial , post-trial, and on di rect a ppeal. When a petitioner seeks postconviction relief on the basis of ineffec ti ve assistance of counsel, he must first establish that the services rendered or the ad vice given was below "the range of competence demanded of attorneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936. Second, he must show that the deficienci es "actually had an adver se effect o n the defen se." Strickland v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 2067 (1984). There must be a reasonable probability that but for counsel’s error, the result of the proceeding would have been different. Strickland v. Washington , 466 U.S. at 694, 104 S.Ct. at 2068; Best
v. State , 708 S.W.2d 421, 42 2 (Tenn. Cri m. App. 1985). Should the petitioner fail to establish either factor, he i s not entitled to relief.
(A) Failure to File a Motion t o Strike “Lawful Custody ” Aggrava

ting Circumstance

The petitioner contends that couns el was ineffective by

f ailing to research, investigate, and/or file a motion seeking t o strike the aggrav ating circumstance that th e petitioner

was in lawful custody at the time of the offense. Despit e defense

counsel ’s selfdefense theory that the victim’s death threats hadto be taken seriously because the prison
was so da ngerous and there was no place where inmates w ere safe, counsel failedt o investigate

or challenge the state’s use of this aggravating circumstance. The petitioner further argues tha t evi dence of prison conditions could ha ve been used to mitigate the circumstances of the crime at both the guilt and sentencing pha ses.

In denying relief, the pos t-conviction court hel d:16 This ground does n ot serve a s a basis for post-convi ction relief. That the prison was less safe than most other places woul d not hav e excused the murder. There was s

ome proof at trial that the prison had a dangerous atmosphere, requiring vigilance on the part of the inmates. This court does not disagree. Bu t that wo uld not have warranted striking this parti cular aggravating

circum st ance. See Tenn. Code Ann. § 39-2-203(i)(8)(1982). Thus, there is neither

deficiency in performance on the part of trial c ounsel nor prejudice in result

.

We find thatthe post-conviction co urt’s findings are suppor ted by the record. Initiall y, counsel for

the petitioner investi gated the conditions at the prison. Every

inmate who testified at theguilt and sentencing phas es was asked questions regarding safety and the meaning of a threat in prison.Moreover, defense counsel presented the testimony of Carl Crafton , a long-te rm inmat e, who wa s qualified a s an expert on prison li fe. Crafton explai ned the seriousn ess of a death threat in prison. However, Appman was not aware that the state of Tennessee had hired Frank Wood in 1985 to perform an evaluation of the prison system. At the post-con viction hearing, the petitioner presented Wood’s testimony regarding his findings. As part of hi s evaluation, Wood visited nine ins titutions, including MCRCF.

Based on his inspection, Wood found serious deficienci es in the Tennessee Departmentof Correction (“TDOC”), especially regarding overcrowding. Wood found that the number o f inmates was beyond the desi gn capacity of the facilities. Moreover, the classification systems were no nfun ctional. Inmates were not assigned to appropriate institutions, and exceptions were made constantly. As part of thi s problem, institutions
were being used to house inmates who were beyond the class if ication for which the institution was designed. There was also an unusually high volume of inmate movement and transfers between institutions. The violence at the prisons was systemic, w

ith a high freq uency of assaults on staff and on other inmates . There was also an extremely high turnover among uniformed staff.

Wood noted that an unusual number of inmates in the system were requesting voluntary protecti ve custody. Because of the pu nitive segregation status and because an inmate could end up being in protective custody

for years, Wood opined that17

it would take

a high lev

el of motivation for an inma te to commi t himself to v oluntary segregation as the only option for protecting himsel f. Such a person might become prey ed upon as a victim personality or as so meon e who ma y not be able to h andle pr

ison life without re sorting to protecti ve custod y.

At MCRCF, Wood found ov e rcrowding and staff short ages. The physical plant was not designed to keep the classification of inmates that were there. Units were left unattended at different times during the day. In Woo d ’s opinion, MCRCF was held together at the time because of the commitment and hard work of the warden and s taff to maintain a rapport with the inmate population.

In reviewing the petitioner’s files from TDOC, it was Wood’s opinion that the petitioner

had been inappropriately classified based on his history of violent behavior. The petitioner

should have been in a

situation where th ere was adequate st affing, supervision, control , an d accountability for h is behav ior. In Wood’s opin ion, a pe rson se rving a life without parole sentence should not be housed in a medium security facility. Wh ile Wood did not think that the conditions at MCRCF mitigated th e petitioner’s actions, he did think that the system had a

responsibility to c

ontrol inmates like the petitioner and that the state should hold some culpability for the way the inst itution was managed. The poor managementput other inmates in danger and also failed to provide the petitioner with the appropriate level of contr ol.
Appman’s theory at trial w as based on reasonable d oubt, but t hat if the petitioner

did commit the homicide, it w as self-defense. He testified that if he had received Wood’s report on prison conditions, he could have shown the jury that the tension in prison
was enormous and that the petitioner’s r eaction was normal under the circumstances. Moreover , he cou ld have shown that the violence was not directed toward the officers, which would have been important because of the high number of people in Mor gan County who were employed by TDOC.18 In addition to Wood’s report, Appman did not know about Grubbs v. Bradley , 552 F.Supp. 1052 (M.D. Tenn. 1982), in wh ich the federal court addressed the issue of prison conditions, including overcrowding and violence, in TDOC. At the post-convicti on hearing, the petitioner presented cons iderable proof on the conditions in TDOC, however, in preparing for trial, A ppman had not reviewed these materials. He admitted at the hearing that this information would have assisted in the defense of th e petitioner in that it would have further ex

plained the environment in w hich the homicide occurred.

While this addi tional in format ion regard ing prison conditio ns would ha ve supported Crafton’s testimony, it would not have provid ed a b asis for striking the aggravating

circumstanc e. The petitioner has not shown that proof of dangerous prison conditionswould warrant a r uling that the murder did not occur while the petitioner was in lawful custody, and he has failed to show that counsel’s performance was deficient or that he was prejudiced.
(B) Failure to Prepare for and Present Evidence at the Sentencing Hearing

The petitioner contends that counsel’s failure to co nduct any investig ation of the petitioner’s medical, family, social, educational, juvenile, military, instituti onal, or prior crimi nal hist ory, and defense counsel’s decision not to present such ev idence at the sentencing hearing was not an informed decision, was facially deficient, and prej udiced the petitioner.

In death penalty cases, the s

entencer may

not be precl uded from co nsidering any aspect of a defendant’s character or record as a basis for a sentence less than death. Lockettv. Ohio , 438 U.S. 586, 604-05, 98 S.Ct. 295 4, 2964-65, 57 L.Ed.2d 973 (1978) (plurality opinion); see also Johnson v. Texas , 509 U.S. 350, 361, 113 S.Ct. 2658, 2666, 125 L.Ed.2d 290 (1993). The Unit ed States Supreme Court has held tha t mitigating evidence is relevant to sentenci ng hearings and should be h eard. See Californ ia v. Brown , 479 U.S. 538, 541, 107 S.Ct. 837, 839, 93 L.Ed.2d 934 (1987); Eddings v . Oklahoma , 45519

U.S. 104, 113-15, 102 S.Ct. 869, 876-77, 71 L .Ed.2d 1 (1982). “Evidenc e about the defendant’s background and character is relevant because of the bel ief . . . that defendants who commit criminal acts that a re attributable to a disadv ant aged back ground, or to emotional and mental problems may be less culpable than defend ants who h ave no such excuse.’” Goad v. State , 938 S.W.2d 363, 369 (Ten n. 1996) (quotin g Californ ia v. Brown , 479 U.S. 538, 544, 107 S.Ct. at 841)

.

There is no legal requir ement and no established practic e that the accused must offer evidence at the penalty phase of a capit al trial

. State v. Melson , 772 S.W.2d 417, 421 (Tenn. 1989). In fact, in many death penalty cases, counsel has

properly seen fit not to offer any evidence at the penalty phase. Id . at 421 (citations omitted).

However, “[a] strategy of silence may be adopted only after a reasonable investigationfor mitigating evidence or a reasonable decision that an investigation would be fruitless." Tafe ro

v. Wa inwright , 796 F.2d 1314, 13 20 (11th Cir.1986 ). Courts h ave held counsel's representation beneath p rofessionally competent standa rds when sentencing counsel did not c onduct e nough i nvesti gation to formul ate an "a

ccurate life profile" of a defendant. See Jackson v. Herring , 42 F.3d 1350, 1367 (11th Cir. 1995).

In Goad v. State , 938 S.W.2d 363, the SupremeCourt set forth the following factors to consider in determining whether the petitioner w as prejudiced by counsel ’s deficiencies: (1) the nature and extent of avail able mitigating proof that was not presented, (2) whether

substantially simil ar mitigating proof was otherwise pr

esented to the jury, and (3) whether there was strong evidence of aggravating factors so that “the mitig at ing evidence would not have affected the jury’s determination.” Id . at 371.

These factors were applied in Henley v. State , 960 S.W.2d 572 (Te nn. 1997), cert
. denied , ___ U.S. ___, 119 S.Ct. 82, 142 L.Ed.2d 64 (1998), where the defendant was convicted of aggravated arson and t w o counts of premeditated murder. “A t trial Henley maintained his innocence and attempted to discredit the prosecution’s evidence.” Henley ,20

960 S.W.2d at 574. At the penalty phase, the def ense called the defendant’s mother to the stand. In the presence of the jury, she disrupted her

own testimony by ann ouncing that she wanted “to talk to” defense counsel. A recess was had, followed by the defense resuming its proof by calling the defendant’s grandmother, without explaining the failure of the defendant’s mother to return to the stand. The grandmother testified to variou s attributesof the defendant, and the defe ndant himself testified about a financial rev ersal that caused him to lose his gr andfather’s farm. Id . at 575-76. The jury sentenc ed the defendant to death, based upon finding one aggravating fact

or in each homicide, that each murder was “‘especially heinous , atrocious, or cruel i n that it involved tortur e or depravity of mind.’” Id . at 576; see T. C.A. § 39-2-203(I)(5) ( repealed 1989). In his post-conviction proceeding, Henley

alleged his counsel faile d to investigate and pre pare for the sentencing hearing, including

the claims

that counsel failed to investigate his mental condition and request an appropriate ev aluation.
Henley presented two expertwitnesses at the post-conviction hearing: (1) an at torney, who testified that trial counsel should have used a psychologist to assist i n determining if mitigating proof might be feasible; an d (2) a psychiatris t, who interview

ed Henley and testified that, at the time of the offenses, he suffered from depression and may have been “‘self-medicating’ by using alcohol and drugs.” Id . a t 577. This latter witness also found that Henley may have ha d a learning disability which may have been responsible for his failure a t farming which, in tur

n, caused his depression. Id

.

In addressing the prejudic e issue first, see Strickland , 466 U.S. 668, 697, 104 S.Ct. 2052, 2069, the Supreme Court found that any failure of counsel to call as witnesses family members, some of whom testified at the post-convictionhearing about th e positive attributesof the defendant, was not prejudici al. Utilizing the first and second prongs o f the three -prong test provided in Goad , the Court noted that the proposed evidence not only duplicated but perhaps, due to its nature, would have dimi nished the poignant testimony of Henley’s grandmother. Further, regarding the nature of the proposed testimony , the Court acknowledged the principle of Californ ia v. Brown , 479 U.S. 538, 544, 107 S.Ct. 837,21

841, that a disadvantaged backg round is often a proper source of mitigati ng evidence but expressed concern about thequality of witness es having a limited r

elationship withHenley
or having personal know ledge about his drug use at the time o f the crime s. At this juncture, the Court declared that “[ a]ppellate court s must consider the quality of the pr o posed testimony rather than the q uantity of witnesses w hen determining whether prejudice has been established.” Henley , 960 S.W.2d 572, 582.

As to the third prong, the Henley court observed that

the pr oof of the aggravating

circumstance was str

ong. Id . The defendant killed an elderly couple. He shot them several times and then burned them by setting fire to their house. The Court found ample support for the single ag gravating circumstance that the crime was es peciall y heinous, atrocious, or cr uel, involving t

orture or depravity

of mind. Id

.

Like in Henley , this Court has addresse d the prejudice issue first, see Strickland , 466 U.S. 663, 697, 104 S. Ct. 2052, 2069, and we find that the petitioner has failed to show prejudice. Thus,there is no need to evaluate whet h er counsel’s performance was deficient. Id

.

At the post-conviction hear ing, App man te stified that he presented all the mitigating proof available to him at the time. In preparing for the s entencing hearing, he obtained Estep’s prison file and spoke with either E step’s mother or wife, as wel l as the attorney representing them in a victim compensation law suit. He also spoke with D r. Doug Young with th e Y ork Institute, who had pr eviously been in char

ge of the educational programs

a t Lake Co unty Correctional facility. Based on his review of the petitioner’s visitor records at

the prison, Appman intervi ewed the Burchett family an d had them tes tify to show that the petitioner could relate to credible people in ameaningful way. In addition, Appman presented pr

oof that the v

ictim h ad bee n a child molester, and Cra fton had testified at trial that the environment withi n the prison was different from the free world and that when a threat was made, a n inmate could not move out or call on law enforcement to protect him.22 Appman ob tai ned the petitioner’s TDOC r ecords, but he did not attempt to get school or juvenile re cords or the transcript of the petitioner’s trial for killing his grandmother. While Appman might have discussed with the pet itioner his military record, he did not atte mpt to obtain i t. Appma n filed a

motion r

equesti ng the servic

es of a psychiatrist, but the trial court denied the motion. The tria l court offered to have the peti tioner

ev aluated by the Tennessee Department of Mental Health, howev er, counsel declined this invitati on. He did not seek funds for a miti gation or sentencing ex pert.

Under the thr e e factors set forth in Goad , we must first look at the “nature and exten t of the mitigating evidence that was available but not presented.” Goad , 938 S.W.2d 363, 371. At the post-convi ction hearing, the petit ioner pre sented t estimon y of two friends who knew him in middl e school and high school. Both would have been available and willi ng to testify a

t the sentencing

hearing . He als

o presented the t

estimony of a deputy at the Hamblen County Jail who indicatedthat the petiti oner pro bably s

aved hi s life in 1978 when he was trying to break up a fight between two other inmates.

Dr. Gillian Blair, a licensed clinical psychologist, testif ied on behalf of the petitioner

regarding the existence of factors which mighthave been presented as mitigating evidence at the sentencing phase. Bl air concluded that the petiti oner was rai sed in an unstable, often violent and threatening home life where the supervision and structure were inadequate. He was exposed as a child to intermittent ex plosive violence from

his father, who was serious ly mentall y ill and was hospi talized extensiv

ely at a psychiatri c hospital between 1969 to 1976. In 1973, there was a r estraining order agai nst the father after he held his m other a nd the petitioner at gun point and had a standoff with the police.In contrast, when the petitioner’s father was not being vio lent, he would be overi ndulgent and encourage inappropriatebehavior. In 1977, the petitioner’s father died of hypothe rmia and exposure. The death certificat e indicated that alcoholabuse was a contributing factor in his death.

From the time ofhis incarceration at age 18, the threatening envi ronment that23

the petitioner had endured as a child was present in TDOC. The prison off ered little structure or predictability. The petitioner had to be hyper -vigilant, and this

was exacerbated bythe fact that a number of inmates had access to weapons and thatthere were a number of assaults in prison.

As a child, the petitioner suffered multiple abandon ments and losses. Specifi cally, his mother abandoned him before the age of one, he essentially lost his father to mental illness, and ultimatel y he suffered the death of his father. Moreover, the circumstances

of his father’s death w ere never explained to him. The petitioner also suffered the los

s of his g randfath er at the age of 7 or 8, and the separation from his mater nal grandparents at the age of 2. He was essentially raised by his paternal grandmother, who was a school teacher.

The petitioner has an exten sive drug h istory. By the ti me he was an adolescent, he was usinga wide variety of drugs. The petitioner admitt ed the he had dealt drugs extens ively as well , to provide a means of obtaining his own drugs and to p rov id e himself some money. His lack of internal controls wa s exacerbated by his drug use.

Eventual ly, the petitioner’s juven ile p roblems an d drug abuse led to him being sent to Knoxv ille to live with his aunt and atten d high scho ol. While he failed some
c lasses , he did not fail a grade. He eventually dropped out of hi gh school during the eleventh grade. In 1978, the petitione r received his GED at a community col lege. At age 17, the petitioner joined the Na vy from November to

December of 1978. He receiv ed an honorable discharge, howev er, the records indicate that he was unable to adjust to military life. The peti tioner was describe d as being overwhelme d by t he traini ng and unable to adjust to the emotional pressure. According to the records, the petitioner’s attitude toward authority was respectful. Thereafter, the petitioner was incar cerated at the age of 18 and has been incarcerated continual ly since that time.

The petitioner’s medical rec ords were limited. He was shot in the eye at the24

age of 9. He had several head inj uries which lead to a loss of consciousness. One such incidentinvolved a motorcy cle accident when the petitioner was 12. The petitioner also suffered sporting accidents at age 13 and 15. In addition, the petitione r was shot in the knee at the age of 16. There is no record of the petitio ner having any psychiatric history or treatment before entering TDOC.

According to Blair, the TDOC recor ds indicated that if kept in a s afe and structured environment, the petiti oner is we ll-adjust ed, presents

no management

problems , and is not violent. Blai r admitted that at the time of the trial, her profession felt that it w as difficult to predict future dangerousnes s and that the key indi cator was a past history of violence. She further admitted that this factor would not have w

ei ghed in favor of the petitioner.

Blairconcluded that the cumulativ e data , social history, interview, and test results su pported persona lity traits that would have rendered the petitioner vulnerable to prevailingconditions in TDOC during the early 1980s. Those co n ditions included an unstable, violent, and threatening environment, where supervision and structure were inadequate to the numb erof inmates. She did not find any si gn of cognitive impair ment
or organi c process. Nor

did Bla ir fi nd any suggesti on of thought disorder or any type of psychosis.

Blair’s primary diagnosis was that the petitione r has an Axis II person ality disorder. Te nsion cons istent with an underly ing anxiety disor

der was also evident

. A cc ording to Blair, i ndividua ls with the se profi les tend t o be blun t, self-c ritical, a nd have inadequate defense mechanisms. The observed cl inical prof i le was consistent w ith a pattern of chronic maladjustment. These individuals tend to be suspicious, alienated, selfindulgent, and narcissistic, w ith immatu re , manipu lative, an d somewha t aggressive behaviors. Blair ag reed with a previous diagnosis of antisocial personality disorder

.

In rebuttal, t h e state presented the testimony of Dr. Theodore H. Blau, a25

clinical psycholog ist from Tampa, Florida. Rather than cond uct his own mental tests or evaluations

on the petitioner, Blau ba se d his opinion on the psychol ogical evaluation pe rformed by Blair, which he described as excell ent. Although he admitted that it wa s difficult to evaluate someone’s mental status from 11 years earlier, Blau made four basic conclusionsbased on his review and evaluation of the petitioner. First, Bla u foun d no indicationsthat the petitioner, in Januar y 1985, suffered a mental disease or defect which would cause him to lack an understanding of the wrongfulness of his act o r to prevent him from conforming to the require ments of the law. Second, Blau found no indicat ions that t he petitio ner, in January 1985, suffered a mental disease o r defect which substantially affected his intellect or judg ment. Third, Blau found no indication s that the prison conditionsin January 1985 caused or ex acerba ted a mental disease or defect in th e petitioner. Finally, Blau found nothin g in the record or in the research review ed to suggest that prison conditions gav e the petitioner no alternati ve other than to

protect himself with a “preemptiv

e strike” by murderi ng the vic tim.
Finally, the petitioner testified on his own behalf at the hearing. He wanted to testify at the trial

and at the sent encing hearing, however, Appman convi nced him that testifying would not be in his best interest based on his past convictions. In addition to the information given by Blair about his personal history, the petitioner testified at the hearing that he loved his father, although his father’s mental illness made hi m unreliable at times. His father would sometimes make the petitioner believe that his birth was a factor in his parents’ divorce. In attempting to get his father’s attention, the petitioner tried to excel in sports, however, his father di d not atten d many spo rting events. When his father would
re turn home from the psychiatric hos pital, the petitioner w ould see an improv

ement
. However, soonthe pattern of behavior would repeat itself, and his father w ould return to the hos pital. Because of his father’s inconsistent presence in his lif e, the petitioner fel t insecure.

The petitioner ’s paternal grand mother was the only st able individual in his

life. He knew that his grandmother would provide for him. When he was young, the petitioner26

felt like a burd en to his gr andmother. Sh e did not dis play emo tion or physical affection, and he felt unloved. As a teenag er, the petitioner had no super vision.

At the age of 15, the petitioner w as deeply impacte d by the dea th of his father. All hope that

his father would become well and share a normal relationship with him
was taken away. His grandmother gave him a car at theage of 16, and this increased his
access to drugs and to people with similar interests. The petitioner turn ed heavily to drugs and alcohol to deal with th e hurt over his father’s death, and he lost interest in school and sports. His drug use became heavier, and he started selling dr ugs. Drug dealing dominated his life and pulled him away from his old fri ends. By th e time he was 18, the petitioner

had a cocaine habit. In the Fall of 1979, the petitioner moved back to Morrist own to live with his g randmother. He admitted that duri ng this time, he was doing more dru gs than any other time in his life.

At the post-conviction hearing, the petitioner admitted that he killed his grandmother and that he had lied about it at the trial. At

the time, lying made it easier to accept his grandmother’s death and his invol vement . Moreover, he had not w anted to accept punishment. When inte rviewed by Bla i r, the petitioner lied about killing his grandmother.

As to the circumstances of Estep’s mur der, the petitioner testified that he and Freeman bought a $50 bag of marijuana from Estep. The marijuana was low quality, so the petition er took it back and demand ed his mo ney. Estep, who was ins ulting, would not ret u rn the money. At a later time, Freeman and the petitioner w ent to Estep’s room to demand the money. The petitioner threw the mar ijuana on Estep’s bedand asked for the money. There was a fight, and the petitioner took Estep’s watch, saying that he would get it back when he gave them the $50. Later that day, the petitioner received w

ord that Estep
was intending to kill him and was making open threats. Whil e the p etitioner sent Estep several messages saying that he wanted to drop the matter, it was to no avail. In order to protect himself, the petitioner obtained a knife. In the dining hall,the petitioner s aw that27

Estep had a kn ife in his hands under his dinn er tray. The petitioner stood up and Estep wal ked to the opposite side of the room. This i ncident lead the petitioner to believe that Estep was serious about kil ling him, however, he did not check himself into pr otective custody because he would have lost his priv ilegesand it would have g iven him a reputation as someone who could not handle h is own problems.

On the day of the murder, the petiti oner and Freeman entered G uild 5 as soon as the officer left. The petitioner testified that Street was not involved. Only two or three inmates were sitting at a table in the back o f the guild. The petitioner went into Estep’s roo m, and Freem an kept watch outside the ce ll. The petitioner had placed a magazineunderneath his shirt with an ac e bandage wrapped around it as body armor, and his knife was in his waistband. The petitioner made one last attempt at making peace, but Estep threw

coffee in his face. After that, there w as a struggle. When the petitioner was able to free himself, he got out the knife and began stabbing Estep. Ev entual ly, th e petitioner

called Freeman for help. Fr eeman came into the cell and helped th e petitioner stab Estep. When Estep finally quit st ruggling, the petitioner washed the kniv es in the toilet and put them under the bed. He then w ashed his face, and t he two left. The petitioner wentto his room, took off his clothes,and placed them in a garbage bag, whi ch he placed
near t he front do or for pick up. He then took a shower to wash off the blood. The petitioner claimed that he ki lled Estep in self defense.

In reviewing the “quality of the proposed testimony,” see Henley , 960 S.W.2d 572, 582, it would have been p roper proof at a sentencing hearing.As in Henley , however, the evidence does n ot reveal a “disadvantaged background,” nor does it suggest “emotional and mental problems [that make the defendant] less culpable than defendants who have no such excuse.” See Brown , 4 79 U.S. at 544, 1 07 S. Ct. at 841. As noted above , the asserted mitigating factor in Goad was a recognized mental illness, where

as in the present case, the clini cal psychologist di agnosed the petitioner with a personality disorder. See State v. Alvin Robinson, Jr. , No. 02C01-9608-CR-00280, slip op. at 9 (Tenn. Crim. App., filed at Jackson, Dec. 3, 1997) (For purposes of defeating premeditation and28

reducing first-degree murder to a lesser grade, “[t]estimony that a defendant suffers from
a personality disorder, rather than a mental disease or defect, fails to estab lish diminished capacity.”), remanded on other grounds , (Tenn. Nov. 9, 1998); see also Stri ckland , 466 U.S. 668, 700, 104 S.Ct. 2052, 2071 (“considerable emotional stress that did not rise to the level of extreme dist urbance” no t sufficient in the face of strong ag gravating factors to demonstrate a probability that the use of the evidence would have changed the outcome).
Indeed, the proof at the pos t-conviction hearing showed little positi

ve or redeeming evidence, with the exception of the deputy with the Hamblen County Sheriff’s Departmentwho testified that the petitioner ha d probably saved his life. See Groseclose
v. Bell , 130 F.3d 1161, 1170-71 ( 6th Cir. 1997)(At capital sentencing hearing, co unsel failed to use proof that defendant had no criminal record, was activ

e in church, had a positive record of military service, and had plethora of family members willi ng to testify on his behalf), cert
. denied , ___ U.S. ___, 118 S.Ct. 1826, 140 L.Ed.2d 96 2 (1998).

Moreover, s ome o f the proposed testimony woul d have been damaging to the defense. Specifically, by delving into the petitioner’s background, defense couns el would have necessarily ha d to consider the daunting prospect t hat such proposed eviden ce woul d have invited cross -examination or rebuttal to show the circumstanc es surrounding the two murders commit t ed in North Carolina and the murder of his grandmother. The petitioner’s grandmother, who was a school t eacher, had adopted and raised the petitioner, provided for his material needs, and protected him from his fa ther’s psychotic outburstsof violence. It was w hen the grandmother discov ered the prior murders that the petitioner beat her to death. See Rickman v. Bell , 131 F.3d 1150, 1157 (6th Cir. 1997) (finding deficient counsel’s performance where he “succeede d in cre ati ng a loathsome

image for Rickman -- one that would make a juror feel compelled to r id the world of him”).

As to the second factor offered in Goad , wh ether evidence similar to the proposed evidence had already bee n heard by th e j ury, Appman presented proof of the29

prison conditions throughout the tr ial and th e sentencing hearing. Al so, proof of the petitioner

having a relationship with normal, law-abiding citiz ens was s hown through the t estimony

of the Burchetts. However, no proof regarding the petitioner’s p ersonal an d family background or history was presented at the sen tencing hearing. Ag ain, as previouslystated, such proof would hav e potentially opened the door to quite damaging testimo ny.

The third Goad factor, the competing streng th of the aggravating

fac tors, f urt her illustrates that any deficient performance was not pr ejudicial. See Henley , 960 S.W.2d 572, 582. Here, the jury found three aggravating circumstances which were supported by the proof. Specifically, the jury found that the petitioner had a pri or conviction fora felony involving

violence, T.C.A. § 3 9-2-2 03(I)(2) (repealed 1989) , which is an aggravating circum stance that is “more qual itatively persuas ive and objecti vely reliable tha n others.” State v. Howell , 868 S.W.2d 238, 261 (Tenn. 1993). In the present case, the state chose to only present pr oof of one of the petitioner’s three prior murder convictions to support this aggrav ating circumstance. Mo reover, the other tw o aggravating circumstances, the murder was committed while the petitioner was in lawful custody and the murder was heinous, atrocious, or cruel, T.C.A. § 39-2-203(i)(5) and (8) (repeale d 1989), are supported by the p roof. See State v. Sutton , 761 S.W.2d 763, 767.

Based on the application of the factors set forth in Goad , the Court finds that the petitioner has failed to demonstr ate prejudicial ineffective ness of counsel in preparing for and conducting further mitigation defense at the sentencing hear ing.
© Failure to Support Motion for Psychological Evaluation

The petitioner argu es that counsel’s failure to support his motion for a psychologicalevaluation, to pursue the psychological evaluation, or to present evidence at sentencing relating to an evaluation were all facially deficient actions that prejudi ced him.30 Ag ain, we find that the post-conv iction court properly

denied relief on t hi s issue. As pointed out by the post-convicti on court, the proof showed that the petitioner refused to assert “mental disease or defect or any diminished capacity as either a defense
orin mit igation of the crime or the pun ishment.” The petitioner testi fied at the post conviction hearing that he told Appman he di d not wan t to pursue a mental defense. Moreover, the testimony of both clinical psychol ogists confirmed that the petitioner was not suffering from a mental disease or defect at the time of the offense or the trial. Further, as pointed out by the post-convi ction court, if a psychi atrist or clinical psychologist had testified, there would have been a di sti n ct probability that the expert would have been cross-examinedabout the details of the petitioner’ s prior episodes of viol ence, consisting of at least three prior homicides, including the murder of his grandmother. Counsel was given the opportunity to have his client evaluated by the state facility, however, he declined this invitation because of fear that the state would use the unf avora ble inform ation regarding the petitioner’s past. Bas ed on these facts, we cannot find that the pet itio ner was prejudiced by counsel’ s failure to pursue a psyc hological evalu ation. Stricklan d v. Washington , 466 U.S. 668, 693, 104 S.Ct. 2052, 2067.

(D) Opening and Closing Argument at the Sentencing Hearing

The p etitioner

contends that counsel’s failur e to prepare or present an opening argument

at sentencing, or to prepar e and present a coherent closing argument at sentencing on why the petitioner should not be sente nced to death was prejudicial. The petitioner

contends that if counsel had done the necessary investigation, prepa ration, and presentation of a coherent mitigation cas e, he would have been able t o present an opening argumentand a coherent closing argument. Initially, this Court notes that a review of the record reveal s that de fense cou nsel di d in fa ct p resent an opening statement at the sentencing hea ring.

Regarding counsel’s openingargument at the sentencing hearing , the postconviction court held:31 The petition er suggest s that the opening s tatemen t, consis ting of on ly two pages, was insufficient and he specul ates thata more adequate statement mayhave produced a different result. There is sim ply inadequate proof of that proposition. By this time, t he j ury had heard a great deal of evidence about the crime. The defense theory w as evident. The peti tioner’s social historyand criminal record, in only 18 years outsi de of incarcerati on , was atrocious. There were some very favorable character witnesses for t he pet itioner. It was

a reason able tac

tic to l imit the

damagin g effect o

f t h e u nfavor able circumst ances. Mu ch of the favorabl e evidenc e today, a s shown in the evidentiary hearing, shows the petitio ner has matur ed since the time of trial.

As to the quality of the closing argument at sentencing, the post-conv iction court held:

The petitioner

makes this claim with

the view that hi s trial cou nsel coul d have made a more cogent, compell ing argument had he conducted mor e legal and factual research. The evid entiary hearing did not, however, produce evidence that supports that claim. There is no indication that the result would have been different. Simply t oo much emphasis has been placed upon trial counsel’s ro le in the sentencing hearing . The problem for the petitioner

in this stage of the trial was his prior criminal record w

hich included three prior murder convic tions in ad dition to that of Carl Estep, an d confessions for two other, unresolv ed claims of murder. Even with additional expert and mitigating witnesses, the petitioner has failed to sho w what could have been said by his counsel to the jury that might have caused a different sentence.

The Court finds that the evidenc e does not preponderateagainst the postconviction court’s find ings on this claim. See Butler v. State , 789 S.W.2d 898, 899.
(E) Absence o

f Co-Counsel

The petitioner contends that couns el was ineffective by fail ing to request the appointmentof co-counsel. He points to the extraordinary burdens imposed on counsel during the pr e-tri al discovery proc ess and the fact that counsel vi rtually conducted no factual or legal inves

tigation of possible mitigation.

At the post-conviction hear ing, Appman stated tha t althoug h the trial court offered to appoint co-counsel, he deli berately refused the offer. A paralegal with his office did extensive inves

tigat ion on this case. Appman also testifie d that he worked with

the32

attorne ys representing the co-defendants . In denying relief on thi s claim, the postconviction court held:

The petitioner had experienced trial counse l who d emonstrated a dogged wor kethic in t he preparations for this tri al. That each of the codefendants had two lawyers,all of whom cooperatedw ith the petitioner’s counsel, is further evidence that the petitioner was not pre j udiced in any way. All testimony

suggested the

efforts of trial counsel for the petiti oner commanded the respe ct of his colleagues, who l ooked upon him for guidance and leadership.

The petitioner has failed to show that counse l was ineffective for failing to request co-cou nsel or that he was prejudiced by that decision. At the time of the trial, Appman had practiced law for sev eral years, tryi ng his first major murder case more than 1 0 years prior to the petitioner’s trial. Appman had also tried several ca ses in Morga n County and was familiar

with the area. In addition, Appman was assisted by his paralegal,
a nd he worked with the a ttorneys representing

the co-defendants. Judge E blen, wh o presided over the trial, tes tifi ed that Appman did not seem hindered bythe lack of cocounsel, nor did his defense strategy appear disjointed during the course of the tri al

. Accordin gly, we find that t he evidence does not preponderate against the trial court’s finding on this issue. See Butler v. State , 789 S.W.2d 898, 899.

(F) Failure to Object to Jury Instructions

The petitioner contends that couns el’s failure to

research, object to, file a new trial motion on, or

raise on appeal, a number of improper instructions

constituted facially deficient performance that was prejudicial.

First, the petitioner contends that defense cou nsel failed to research and to object at trial, post-trial, and on appeal to the court’s preliminary inst ruction to the effect that “The law with regard to First Degree murder in the State of Tennessee says that those persons convicted of that offense shall receive the death penalty or, if the jury decides that it is appropriate, then the jury will fix a life sentence.”33 Initiall y, the Court notes that no such i nstruction is found at the citation to the
re cord included in the petitioner’ s brief. See Rule 10(b), Tennessee Court of Crim ina l Appeals Rules. Regardless, the argument that these jury instructions shift the burd en of proof to the defendantto show that a life sentence should be impos ed has been rejected byour Supreme Court. See State v. Van Tran , 864 S.W.2d 465, 478 (Tenn. 1993); State
v. Bane , 853 S.W.2d 483, 488 (Te nn. 1993). Accordingly, counsel cannot be held deficient for failing to raise the is sue.
Next, the petitioner contends that defense cou nsel failed to research and to object at trial, post-trial , and on appeal to the r epe ated references in the charge at sentenc ing and th e senten cing verdic t form to the requir ements o f unanim ity.

Again, arguments regar di ng these jury instructions have been repeatedly rejected by our Supreme Court. See State v. Brimmer , 876 S.W.2d 75, 87; State v. Smith , 857 S.W.2d 1, 22-23 (Tenn. 1993); State v. Barber , 753 S.W.2d 659, 670-71 (Tenn. 1988). Thus, counsel was not ineffectiv e by failing to object.
Next, the petitioner contends that defense counsel failed to resear ch and to object at sen tenc ing, post-trial, and on appeal to allowing the aggravating circumstance that the petitioner

was in custody at the time of the offense to go to the jury when the trial court did not charge the j ury on this aggrav ating circumstance.

A review of the record reflects that the trial cou rt inst ructed the jury to consider whether “the murder w as committed by

the Defendants while they were in lawful custody or in a

place of lawful confinement or during their escape

from lawful custody or from a place of lawful confinement.” A ccordingl y, the jury was properly instructed,and counsel had no rea son to ob ject to an uninstru cted jury.

Next, the petitioner contends that defense counsel was deficient bec ause he failed to research and to object pre-trial, post-tri al, and on appeal to the ambiguit yof the34

jury instruction on the heinous, atrocious, and cr uel aggravating circumstance.

On this issue , despite our SupremeCourt’s conclusions to the contrary, the post-conviction court

acknowledged that

the Sixth Circuit C

ourt of Appeals hasheld that the “especially heinous” instruction as well as the term “depravity of mind” does not meet constitutional safeguards. See Houston v. Dutton , 50 F.3d 381 (6th Cir.), cert
. denied , 516 U.S. 905, 116 S.Ct. 272, 133 L.Ed.2d 193 (1995). However, the post-conviction court went
on to perform a harmless error analysis pursuant to State v. Howell , 868 S.W.2d 238, and concluded that applicatio n of the heino us, atrocious, o r cruel agg ravating circumsta nce was harmless beyond any reas onable doubt.

In State v. Willia ms , 690 S.W.2d 517 (Tenn. 198 5), our Supreme Court reversed a sentence of death and remanded f or a new sentencing hearin g after find ing "that t he cou rt did not instruct the j ury concerning the l egal significance of the w ords 'heinous,' 'atrocious ,' 'cruel, ' 'torture ,' or 'depr avity of mi nd' as those termsare used in the aggravating

circumstance defined in T.C.A. § 39-2-203(i)(5) ." Id . at 532. The Court found the statute to be constitutional "so long as the abstract terms e mploye d therein are construed and interpreted as we hav e done i n this opinion and other opinions of this Court." Id . at 533. Jury instruc tions on the definitions are nece ssary to pr

eclude "a basicallyuninstructed jury " that "cannot lawfully i mpose the death penalty," Id . (citing Godfrey v. Georgia , 446 U.S. 420, 429, 100 S.Ct. 1759, 1765, 64 L .Ed.2d 398 (1980)). A review of the jury instructions giv en at the petitioner’s trial reflects that the jury was properly instructed on the necessary definitions.

Whereas, in Houston , the trial court did not instruct the jury on the definitions of any of the terms set forth in the heinous, atrocious, or cr uel aggravating circumstance. 50 F.3d 381, 387. In Rickman v. Dutton , 854 F. Supp. 1305, 1309-10 (M.D. Tenn. 1994), the trial court defined the terms "heinous," "atrocious ," and "cruel" for the jury but did not define the terms "torture" or "deprav ity of mind." 854 F.Supp. 1305, 1309-10. In rev iewing the instruction, the district court held that the "especially heinous" in struction, even as35

limited by the definition of heinou s as "extremely wicked or shockingly e vil," was unconstitutionally vague. Id . at 1310. The district court also held that the ins truction was vague despite the inclusion of the ter m "depravity of mind," wh ich it also fo und to be unconstitutionally vague. Id

. In contrast, the trial court in the pres

ent case instructed the juryon all the def initio ns required under Williams , and counsel’s performance w as not deficient in failing to rai se this issue.

Finally, the petitioner contends that defense counsel failed to research and investigate, and to prepare proposed instruc tions at the guilt and sentencing phases based
on the federal findings and admitted c onclusions of the state’s ow n experts on factual issues bearing directly on the petitioner’s assertion of self-defense, on statuto ry mitigating circumstances, and on non-statutory mitigating c ircumstances.

As noted by the post-convi ction court, a more extensive c ase could have been presented, however, this is not the standard in reviewing a claim of ineffe ctive assistance of counsel. Previously in this opinion, the Court found that the petitioner had not met his burden of proving ineffective assistance based on counsel’s failure to pres ent proof of prior feder

al proceedi ngs on the i ssue of priso n conditions . The same holds true for counsel’s failure to req uest these jury instr uctions. This issue is w ithout merit.
(G) Failure to Obj

ect to Prosecutorial M isconduct

The petitioner

raises sev

eral claims

that counsel was ineffectiv e by failing to object to misconduct by the prosec ution. The post-convicti on court held that the petitioner failed to show

any misconduct, and therefore, his claim of ineffective assistance was held to be without merit. While in some insta nces, the arg uments made by the prosecution
were impro per, we f ind that the petitioner has fail ed to show that he was pr ejudiced by counsel’s failure to object to these remarks.

First, the petition er s ubmits that defense counsel failed to i nvestigate or36

research, or to object at t rial , post-trial, or on appeal to the prosecution’s repeated misstatementsin voir dire that the co nditions a t MCRCF had no bearing on how the law should be applied. While the petitioner cites t o th e record for the specific instances complained of, he has failed to c ite to any authority supporting

relief on this issue, and therefore, the issue is deeme d wa ive d. See Rule 10, Tennessee Court of Cri minal Appeals Rules.

Next, the petitioner contends that defe nse coun sel fa iled to research or to object at trial, post-trial , or on appeal to the pr ose cution’s statements about Crafton’s credibility , not o nly because such practi ce was improper gener ally, but because the prosecution’s argument was misleading to the extent that it implied that inmate Crafton’s testimony

about the dangerous conditions in TDOC was

untrue. Specifically, the petitioner complains of two comments made by the pros ecutor during closing

argument at

the guilt phase: “[Crafton] thinks he is a cut above theother prisoners, that he is a man of character, a man of principle a man who wa nts to live decently a nd rightly” and “[a]re you going to buy the goods he is trying to sell to you?”

A prosecutor's argument must be supported by evidence i ntroduced at trial and the reasonable in ferences t o be drawn from that evidenc e. State v. Beasley , 536 S.W.2d 328, 330 (Tenn.1976). Moreove r, a lawyer's per sonal opinion as to the credibility of witnesses should not be i njected into the closing argument. Id . While a prosecutor is
an advocate, entitled to pursue his role with thoroughness and vig or, he must also act as the representativ

e of a sovereignty who has an obligation to govern impartially. Judge v. State , 539 S.W.2d 340, 344 (Tenn. Crim. App. 1976). Therefore, "improper suggestions, insinuations, and, especially, asser tions of personal know ledge are apt to carry much weight against the accused whe n they should p roperly ca rry none." Berger v. United States , 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed.2d 1 314 (1935).

In order to determine whether any imprope r co nduct was prejudicial, this Court has set forth five factors to consider:37 (1) the conduct complained of viewed in the context and in lig ht of the facts and circumstances of the case, (2) any curative measures undert aken by the court and th e prosecution, (3) the inte nt of the prosecutor in making the improper statement, (4) the cumulativ e effect of the improper conduct and anyoth er errors in the record, and (5) the relative strength or weakness o f the case.
Judge v. State , 539 S.W.2d 340, 344.

In the present case, the prosecuting attorney's remarks about Crafton were supported by

the record. Crafton testified during c ross-examination that he ha d never met another inmate with his princ

iples or character. As

to the prosecutor’s question to the jury whether it was going to “

buy the goods he is try ing to sell you,” the state also made clear that it was the jury

’s responsibility

to judge the credibility of witnesses:
[Crafton] was here to give his viewpoints and his expert opinion on prison life. Thefirst thing I would like you to consider i s washe credible to you? Listen carefully when the Ju dg e charges as to how to determine someone’s credibility

an d the things that you are entitled to consider, such as respectability, poss ible bias, whether th e y really know what they are talking about in the first place.
Furthermore, the jury was charg ed by the trial court r egarding the weig ht and credibility as to all witnes s es. Even if the closi ng remark s of the p rosecuto r were impro per, which we do not find, we find that the petiti oner has failed to demonstrate res ulting prejudice.

In a similar complaint, the petitioner contends that defense counsel failed to object at trial, post-trial , or on appeal to the prosecution’s argument “Are you willing for the citizens of Morgan County to accep t the kind of prison system that [Crafton] seemsto think you ought t

o have, ” imply

ing tha t the pet itioner

and Cra

ft on were responsible for the system-wide

violence. While the prosecutor’s argument was not support ed by the proof, in th at Crafto n testified as to his impress ions of actual prison conditi ons and not what prison conditions should be, the petitioner has failed to show that this arg ument was prejudicial. See Judge v. State , 539 S.W.2d 340, 344.38 Next, the petitioner contends that defe nse coun sel fa iled to object at trial, post-trial, or on appeal to the prosecution ’s argument that the defendants must be guilty because they were the persons whom W orthingt on immed iately pla ced in adm inistrat ive segregati on. Spec ifically, the prose cutor argu ed to the jury:

Now, use your common sense here for a moment. Who was locked up immediately after this body was found an d the very first information received? They are sitting ri ght over there. D o you think Mr. Worthington said , “Oh , let’s see, we got a dead man here, lock up Street, Sutton and Freeman.” Do any of you al l believe that?

This argument was

clearly inappropri ate. A prosecutor should not i mply that
a defendant is guilty becaus e he is the one who was arrested. S ee State v . Hicks , 618 S.W.2d 510, 516 (Tenn. Crim. App. 1981) (Impr oper for prosecutor to argue that because grand jury charged defendant, he mus t be presumed guilty). See also , United St ates v. Bess , 593 F.2d 749 , 753-54 (6 th Cir. 1979) (Improper for prosecutor to suggest that defendant is guilty because h e is being prosecuted or has been indicted). How ever, after reviewing

this comment in light of the r ecord, we do not find that it affected the verdict. See Judg e v . State , 539 S.W .2d 340, 344. The refore, the petit ioner has not shown prejudice due to counsel’s failure to object.

Next, the petitioner contends that def ense counsel failed to object at trial, post-trial, or on appeal to the prosecution’s argument that “I have not heard one word of Nick Sutton or Thomas S treet ev er being touched by Car l Estep. I heard a lot of suggestion, but that is all it ha s been.” The petitioner contends that this argument const ituted an impermissible comment on his failure to testify. We disagree. Th e argumentdid not comment on the petitioner’s failure to testify. It was merel y a comment
on the proof. There was testimony regarding possible threats made by the victim, but there
was no p ro of of the victim physicall y attacking or hurti ng the petitioner. This ar gument does not constitute misconduct, State v. Beasley , 536 S.W.2d 328, 33 0, and therefore, counsel was not ineffectiv e by failing to object.39 Next, the petitioner contends that defense counsel should have objected at trial, post-t rial, or on appeal to the prosecution’s arguments regarding future dangerousness. Specifically, the petitioner argues that an objection shoul d hav e been made to the following arguments made by the prosecution: “W hat are you going to do to NicholasSutton, Gi ve him a lif e sentence? Will that prevent there be ing another Carl Estep?,” “Society has certain rights and the State simply asks that you exercise society’s right to self-defense. These men are already locked up . Mr. Nichola s Sutton is already serving a life sentence,” “[Sutton] was conditi oned on the street to kill peop le. Ladies and gentlemen, we suggest to you that persons who are armed robbers and first d egree murderers are already conditioned to kill people, ” and “W hen we get t o the poi nt that we h ave done everything possible to protect ourselves and there is nothing els e we ca n reasonably do that would protect our selves from people like N icholas Todd Sutton...then we have the right o

f self-defense and this is where capital punishment comes in.”

A capital sentencing jury is not precluded from consideration of the f uture dangerousness of a particular defendant where such is a relevant factor under a stat e' s capital sentencing law. See Jurek v. Texas , 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976). Generally, ho

wever, our Co urts have held that the is sue of specific or general deterrence should be avoided by the prosecution in cl osing argument at a capital sentencing hearing. See State v. Bates , 804 S.W.2d 868, 881-82 (Tenn. 1991); State v. Irick , 762 S.W.2d 121, 131 (Tenn.1988). Specifically, the deterrence argument is usually irrelevant

to the aggravating

circumstances listed in Tennessee's statute. State v. Bates , 804 S.W.2d at 882. Thus, "unless relevant to some th eory raised by the S tate['] s proof,
or the defense, it interjects an el ement into the jury's cons iderations not provided forby the law ." Id . I n reviewing the p ropriety of argument in a capital sentencing procee ding, the reviewing

court must d etermi ne w hether the prosecutor's comments affected the sente ncing decision. State v. Irick , 762 S.W.2d 121, 131. "If the Court cannot say the
comm ents had no effect on the sentencing, then the jury's decision does not meet th e standard of reliability req uired by the Eighth Amendm en t." Id . (citing Caldwell v. Mi ssissippi , 472 U.S. 320, 105 S.Ct. 2633, 2646, 86 L.Ed.2d 231 (1985)).40 While these comments by the prosecution w ere obviously inappr

opriate, based on a review of

the entire record, we do not find that the jury’s deci sion was affected. Accordin gly, the petitioner has failed to show prejudi ce based on counsel’s failure t o object.
Finally, the petitioner contends that defense counsel failed to move to strike
or to dismiss the death notice because given the state’ s longstanding indifference t o violence in TDOC and its causes, g iven the 1985 findings of Mr. Wood , and given th e undisputed fact that the victim had repeat edly threatened the

petitioner and refusedoffers of peace, the petitioner submits that a deat h notice in this case violated the due process and the cruel and unusual punishment guarantees of the United States and Tennessee constitutions. The underlying issue regarding prison conditions has been addressed in this opinion, and we do not find that cou nsel was in effect ive for failing to move to str ike or to dismiss the death notice.

(H) Failure to Rai se Issues on Direct A ppeal

The petitioner contends that d efense counsel was ineffective on appeal because he failed to research the law , investigate the facts, perfect the record, and raise importantissues on appeal. He points to each of the issues raised in his briefand in the amended post-conviction petition, and as to each fact and legal ar gument raised. Because
we have held that the petitioner’s claims ar e without merit, we find that his claim of ineffe ctive assistance based on counsel’s failure to raise these issues on direct appeal is without merit.
(I) Cumulativ e Effect
Finally, the petitioner c ontends that the cumulative effect of counse l’s repeated, deficient failures rendered hi s trial and sentencing fundamentally unfair. Based
on our review of the is

sues raised regarding

ineffective assistance of counsel, we reject the petitioner’s contention that the cumulativ e effect of any

errors found would require reversal.41 V. False Testimony and Misleading Argument Regarding Conditions at MCRCF

Th e petitioner contends that duri ng the trial, the state fals ely por trayed inmat e safety and security at M CRCF. On this issue,the post-conviction co urt held:

The petitioner has failed to meet his burden of proof. There i s insufficient evidence to establish that the state mi srepresented th e lev el of safety and security for inmates at the Morgan County Reg ional Correctional Facili ty at the time of the offense. There is no indicati on that th e witness, James Worthington, inappropriately misled the petitio ner or his counsel in this regard. Moreover, the petitioner was i n a position to have known of these circumstances, divulge them to his counsel, and supply possi ble witnesses in support of his claims. For example, the petiti oner presented a witness at trial, Carl Crafton, who testi fied at length about prison li fe and the conditions that existed in the Depar tment of Corrections at the time o f this offense.

At trial, Worthington testif ied rega rding his perceptions of the prison environment

at MCRCF. Proof that Worthington w as aware of Wood’s report does not make his testimony regarding his own perceptions of the pri son c onditions false. Cf

. Brotherto n v. State , 477 S.W.2d 522, 523-24 (Tenn. Crim. App. 1971)(doc tor’s opinion testimony regarding

whether defendant appeared sober i s not made out to be perjury by results of blood test reflecting alcohol content of .0 14 in defendant's blood).
VI. False Testimony

Regarding Prior Stat ement of Inmate Lumb ert

The petitioner con t ends that a handwritten memo regarding inmate Gary Lumbert’s stateme nt taken by Wor thington wa s not in cluded in the state’s files an d was onlyproduced a few days pri or to the post-conviction h earing. The petitioner submits that the statement was manufactured, that it constituted false testimony, and that the testimony
was material to the proceeding s. The petitioner further contends tha t the post-conviction court erred by failing

to address this issue.

While it does not appear that the post-conviction court addres sed this specifi c issue, we find that it is without merit. Worthington’s notebo ok contained notes from all the42

interviews conducted during the inv estigation of the murder, how ever, a memo regarding
an interview of Lumbert on March 13, 1985, was not i ncluded in th e notebook, nor was Lumbert’s nam e inc luded on the lists provided to defense counsel. Lumbe rt eventually testified at trial on behalf of co-defendant Street. Before the post-conviction hearing, the
memo regarding the

interview with Lumbert was found in Worthington’s miscellane ous file. Worthington testified that the statement was not in his note book because it had been misplaced.

Included in the state’s file wer e notes written b

y General Harvey during Lumbert’s testimon y at trial. Accordi ng to General Harvey, Worthington was telling the prosecutors that Lum bert had given diff erent an swers durin g his inter view t hat wer e contraryto his testimony. Genera l Harvey took notes so they could l ook into the matter. The notes indicated that Lumbert had told W orthington that Freeman and Street were bragging about the murder, however, the memo regarding an i ntervie w of Lumbert indicated that Lumbert had s tated that the petitioner and Street w ere the ones bragging about the murder. General Harvey did not know if he had misinterpreted what Worthington was saying or i

f Worthington had misspoken at the time.

A review of the trial

transcript also refut es the petitioner’s clai m. When Worthington was cross-examin ed by defense counsel, he indicated that inmate Lumbert’s statementhad been recorded and the t rial cour t ordered the state to produce that statementfor the purposes of cross-ex amination. Accordingly , defense counsel was given
an opportunity to revi ew the statement at the time of the trial. This supports a finding that the sta tement was available and reviewed at the time of trial and was not false l y manufactu red for purpos es of the post -conviction heari ng.

VII. Brady

and Giglio Claims

The petitioner contends that the pos t-conviction court er

red in finding that he had failed to establish claims under Brady v. Maryl and , 373 U.S. 83, 83 S.Ct. 1194, and43

Giglio v. United States , 405 U.S. 150, 92 S.Ct. 763. Specifically, the petitioner submits that the proof showed that prior to trial, the state was i n possession of inconsistent s tatements of the four inmate w itnesses who testified for the state and the statements of those four inmates that conflicted directly. The petitioner further submits that the proof showed that the state was aware of the findi ngs in Wood’s report on MCRCF, tha t the information was not provided to d e fense counsel, and that Worthington’s testimony at trial directly

conflicted with Wood’s findings and conclusions.

On the peti tioner’s Brady claims, the post-convi ction court held that the petitioner

failed to rebut the statutory presumption of waiver an d, in the alternative, failed to meet his burden of proof to establish that the state violated any of the discovery guidelines

which would q ualify

him for r elief. As to the petitioner’s Giglio claim, the postconviction court held that he “failed to meet his burden of proof to establish any violation of the Giglio rule. The proof simply does not establish that the sta te made any promises of immunity or leniency to the wit nesses in ex change for testimony. There w as no evi dence that the prosecution withheld any documents or information of any kind that would tend to impeach the cr edibility of the state’s witnesses.”

In Brady v. Maryl and , the United State s Supreme Court held that any "suppression by the prosecution of evi dence favorable to an accused upon request violates due process where the ev idence is material either to guilt or to

punishm ent, irre spective of the good faith or bad faith of the prosec ution." 373 U.S. 83, 87, 83 S.Ct.1194, 1196-97. The duty to disclose ex tends to all "favorable information" regardless of whether the evidence is admissi b le at trial. State v. Marshall , 845 S.W.2d 228, 232- 33 (Tenn. Cri m. App. 1992). In Giglio v. United S tates , 405 U.S. 150, 154 -55, 92 S.Ct. 763, 766, the SupremeCourt held that both exculpatory and impeachment evidence fall under the Brady rule. S ee also , United States v. Bagle y , 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481 (1985).

Before an accused is entitled to r elief under this theo ry , he must establish44

several prerequisites: (a) the prosecution must have s uppressed the evidence; (b) the evidence suppress ed must h ave been favorable to the accused; and (c) the evidence must have been material. See United States v. Bagle y , 473 U.S. at

674-75 , 105 S. Ct. at 3379-80; Brady v. Maryl and , 373 U.S. at 87, 83 S. Ct. at 1196 -97; State v. Edgin , 902 S.W.2d 387, 390 (Tenn. 1995); Workman v. State , 868 S.W.2d 705, 709 (Tenn. Crim. App. 1993); Strouth v. State , 755 S.W.2d 8 19, 8 28 (Tenn. Crim. App. 1986). Evidence is considered material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the results of the proceeding would have been different. United States v. Bagley , 473 U.S. at 682, 105 S.Ct. at 3383

.

In order to prove a Brady violation, a defendant must show that "the favorable evidence could reasonably be taken to put the whole case in s uch a differen t light asto undermine confidence in theverdict." Kyles v. Whitley , 514 U.S. 419, 435, 115 S.Ct. 1555, 1566, 131 L.Ed.2d 490 (1995). S ee also , Edgin , 902 S.W.2d at 390. There must be a "reasonable probability that, had the evidence been disclosed to the defense, the res ult of th e proceeding would hav e been different." Id . (quoting Kyles v. Whitley , 514 U.S. 4 19 , 435, 115 S.Ct. 1555, 1566). The Court in Kyles urged that t he cumulative effect of the suppressed evidence be considered to determine materiality. 514 U.S. at 436, 115 S.Ct. at 1567.

The state is not required t o disclose information t h at the accused already possesses or is able to obtain, State v. Marshall , 845 S.W.2d 228, 233, or information which is not possessed by or under the control of the prosecuti on or another governmental agency. Id

.
On appeal, the petitioner makes no specific claim that thestate suppressed information regarding favors or immunity offered to witnesses. However, a review of the record confirms the post-convic tion court’s finding that the petitioner failed to show that any favors or immunity were g iven to an y of the wit nesses in exchange f or their te stimony. Worthington and the assistant distric t attorney generals w

ho prosecuted the pet i tioner’s45

case test ified that at the beginning, they agreed that there w ould be no promises

t o inmates in exchange for testimony. Worthington believed that all the inmates who testified had already

been par

oled at the time o

f the tri al wit h the ex

ception of S cates. After th e trial, as a courtesy, he wr ote Scates a letter of appreciati on for his testimony. At bes t, the proof showed that the state offered to protect any inmateswilling to testify from possible retaliation.

The petitioner submits that the state should have provided the statement s of the four inmates who testified at t rial because the statements w ere inconsisten t. T he statements of the f our inma tes were su ppressed by t he state b efore trial, however,the defense received the statements as Jencks material after each inmate testified and be fore cross-examination.

In State v. Caughron , 855 S.W.2d 526 (Te nn. 1993), our Supreme Court held that “delayed disclosure requires an inquiry into whether the delay prevented the defense from using the disclosed material effectively in preparing and presenti ng the defendant's case.” Id . at 548. In United States v. Ingr aldi , 793 F.2d 408, 413 (1st Cir.1986), the Court held that defense counsel cured a potenti al Brady v iolation by failing to move for a continuance and then thoroughly cross-examining th e witness.

In the present case, the state pr ovided defense cou ns el with copies of the inm ates’ statements after each inmate testified.Moreover, the trial court gave defens e counsel ample opportunity to review the

statements before cross-examining each witness. Thereafter, defense counsel was giv en an opportunity to cross -examine the witnesses and point out any inconsistencies in their statements and tes timo ny. Accordingly , under Caughron , we find th at defe nse coun sel elimi nated an y Brady violation with regard to prior statements of the inmates who testi fied on behalf of the state.
Finally, the petitioner contends that the state was re quired to disclose Wood’s report regarding prison c onditi ons at MC RCF. As previousl y stated, the state is not46

required to disclose informationthat the accused is able to obtain. State v. Marshall , 845 S.W.2d 228, 233. Here, the petitioner failed to show that the eva luation and report prepared by Wood, Report on conditions at sel ected A dul t Correctional Facil ities in the Tennessee Department of Corrections (June 1985), was unavailable to defense counsel.

VIII. Constitution ality of the Death Penalty St atutes

The petitioner raises sev eral constitutional chall enges to T.C.A. §§ 39-2-204 and -206 (repealed 1989). To the ex tent that the petitioner chall enged the constitutionality of the death penalty statutes on direct appeal, Sutton , 761 S.W.2d 763, 768,these claim s have been previously determin ed. See T.C.A. § 40-30-112(a) (1990) . Otherwise, t h e issues have been waiv ed. S ee T.C.A. § 40-30-112(b)(1) (1990). Regardless, ou r Supreme Court has held repeatedly that the death pen alty statutes are constitutional.

Initially , the pe titioner contends that the death penalty statutes fail to meaningfully narrow the class of death e ligible defendants. Specifical ly, he argues that the aggravating

circumstance set forth in T.C.A. § 39-2-204(i)( 5) (repe aled 1989), that the murder was heinous, atrocious, or cr uel, is vague and ov

erbroad. Acknowledging that this issue has be en addres sed by our Supreme Court i n State v. Willia ms , 690 S.W.2d 517, 526-30, the petitioner submits that the opinion was in er ror.

As an intermediate appellate court, it is our duty to apply the law as promulgated by the Legislature or as announced by our

Supreme Court. It is bey ond our statutory function to overrule a holding o f our Sup reme Cou rt, and we are bound to follow the holding in Williamsunder the doctrine of stare deci sis. See Reimann v. Huddleston , 883 S.W.2d 135, 137 (Tenn. App. 1993). Moreover, our Supreme Court has repeatedly upheld its decision in Williams , rejecting the argument that this aggravating circumstance
was unconstitutionally v ague or overbroad. See State v. Black , 815 S.W.2d 166, 181-82 (Tenn. 1991); State v. Barber , 753 S.W.2d 659, 67 0 (Tenn. 1988).47 Next, the pet itione r contends that the death penalty is imposed in a caprici ous and arbitrary manne r. Spe cifically, he contends that the death penalty statute is unconstitutional because it requires tha t the jury be instruc

ted that it must agree unanimously in order

to impose a life sentence and is prohibited from be ing told the effect of a non-unanimous verdict. While admitting thatthis jury instruction has been upheld by
our Supreme Court on numerous occasi ons, the petitioner contends that the Sup reme Court has never considered the poss ibility that juri es may act arbitraril y because o f confusion regard ing the conseq uences o

f a deadlock. A

gain, our S upremeCourt has held this portion of the statute to be constitutional , see State v. Brimmer , 876 S.W.2d 75, 87, State v. Smith , 857 S.W.2d 1, 22-23 (Tenn. 1993), and State v. Barber , 753 S.W.2d 659, 670-71, and this Court declines the petitioner’s invi

tation to reconsider its

constitu tionalit y.
Next, the petit ioner con tends th at the jur y instruct ions impl y that jurors are req uired to agree unanimo usly t o a life v

erdict and to th e exist

ence of m itigatin g circumstances

in vio lation o

f Mills v. Mary

land , 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988), and McKoy v. North C arolina , 494 U.S. 433, 110 S.Ct. 1227, 1233, 108 L.Ed.2d 369 (1990). These arguments hav e been rejected by

our Supreme Court. See State v. Brimmer , 876 S.W.2d 75, 87; State v. Thompson , 768 S.W.2d 239, 251-52 (Tenn. 1989); State v. Bates , 804 S.W.2d 868, 883.

Next, the petitioner contends that the appellate review

proc ess is constitutionally inadequate in its application. Specifically, the petitioner contends that

the appellate review process is not constitutionally mean in gful because the appellate court s cannot re weigh proof due to the absence of written findings concer ning mitigati n g circumstances, because the information relied upo n by the appellate courts is inadeq uate and incomplete, and because the appellate courts’ me thodology is flawed. These arguments have all been rejected. See State v. Brimmer , 876 S.W.2d 75, 87-88; State v. Cazes , 875 S.W.2d 253, 27 0-71 (Tenn. 1994).

Finally, the petitioner contends that the statutorily mandated

proportionality48

review is conducted in violation of due process. Our Supreme C ourt has h eld that the appellate review provi ded for in the statut e afford s a meani ngful pro portiona lity review. See State v. Brimmer , 876 S.W.2d 75, 87-88; State v. Cazes , 8 75S. W. 2d 253, 270-71. Moreover, the petitioner’s claim th at our Supreme Court has never found a

death sentence to be imposed in a disproportionate manner is untrue. In State v. Branam , 855 S.W.2d 563 (Tenn. 1993), the Supreme Court found the death penalty to be disproporti onate and reduced the defendant's sentence to life. Id . at 570-71. The petitione r’s claims regarding the constitutionality of

the death penalty statutes are waived, previo usly determined, and without merit.
IX. Imposition of Death Penalty Arbitrary and C apricious
Finally, the petitioner contends that because the stat

e failed to prov ide safe and cons titutional conditions in p rison at the time of the murder, i mposition of the deat h penalty would be arbitrary, capricious, and fundamentally unfair. This issue was previously determined by our Supreme Court on direct appeal. The Court held that “impositi on of the death penal ty by the jury w as neither arbitrary

nor excessive or disproportionate to th e penalty imposed for similar crimes.” State v. Sutton , 761 S.W.2d 763, 768.

X. Conclusion

Afterthoroughly reviewing the record and the law applicable to the iss ue s raised in this appeal, we find tha t the pet itioner h as faile d to prove h is allegat ions by a preponderance of the evidence. State v. Kerley , 820 S.W.2d 753, 755 ( Tenn. Crim. App. 1991). Accordingly , we affirm the judgment of the tri al court.

The petitioner’s sentence of death by electrocution shall be carried out o n August 31, 1999, unless otherwise stayed by an appropriate order.49 _________ ________________

_______ _ JOHN K. BYERS, SENIOR JUDGE
CONCUR:

_________________________________ JOE D. DUNCAN, SPECI AL JUDGE

_________________________________ TERRY L. LAFFERTY, SENI OR JUDGE