### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT KNOXVILLE Novem ber 28, 200 1 Session STATE OF TENN ESSEE v. JAMES A. MELLON Direct Appeal from the Criminal Court for K nox County No. 64113B Mary Beth Leibowitz, Judge

No. E1999-01505-CCA-R3-DD September 19, 2002 The defenda

nt, James A. Mellon, pl ed guilt y to first degree felony

murder and especially

aggravated robbery and waived his right to a trial by jury. As part of the

plea agreem

ent, the Stat e agreed to recommend

concurrent senten c es on thes e charg es of life imprisonme

nt with the

possibility

of parol e and twenty -five y

ears impr is onment , respectively , in exchange for the defe ndant’s a greem ent to testify truthfully and consistent with his previous statement at the trial s of his codefe ndants. Thereafter, the defend ant refused to testify as requi red by his plea a

greem ent, inste ad, moving

to withdraw his guilty

pleas. That motion was denied, the State withdrew its sentencing recommendation, and a sentencing hearing was held. The jury , at

the sentencing hearing, found the statutory ag grav ating circumstance that the defenda nt had previously bee

n convicted of a felony involving violence to the pe rson an d sentenced the defendant to death. For the conviction of especia lly aggravated robbe

ry, the def

endant was sentenced

to a cons ecutive term of twenty -five yearsimprisonment. He then filed a timely appeal. Followin g our re view, we affirm t he judg ments of th e t ri al co ur t a nd th e i mp os it io n o f t he de at h p en al ty. Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed A LAN E. G LENN , J., delivered the opinion of the cou rt, in which J OSEPH M. T IPTON and J OHN E VERE TT W IL LI AMS , JJ., joined. Gerald L. Gulley , Jr., Knoxvill e, Tenne ssee, and Tim S. Moore, Newport, Tennessee (on appeal); Brandt Davis and Leslie M. Jeffress, Knoxville, Tennessee ( at trial), for the appel lant, Jame s A. Mellon. Paul G. Summers, Attorney Gene ral and Reporter; Michael E. Moore , Solicitor

Genera l; Marvin S. Blair, Jr., Assistant Attorney Gene ral; Randall E. Nichols, District Attorney G eneral; and

Ro ber t L. Jolley, Jr., Assistant District Attorney General, for the appellee, State of Te nnessee. OPINION In his appeal, the defe

ndant raises the following issues for our review:-2- I. The evidence presented in its entirety and as contained in the re cord wa s insufficient as a matter of law to support a sentence of death: A. Capital punishment is not proportional to the defendant’s culpability

in the dea

th of Robe

rt S c ott Loveday , and its imposition would constitute cruel an d unusual punishment prohibited by the Eighth Amendmen

t to the United Sta

tes Constitu

tion and by

Article I, Section 16 of the Tennessee Constitution; B. The imposition of capital puni shmen t in this ca se is dispropor tionate to the penalty imposed in similar case s, considering the nature of the crime; and C. The imposition o f capita l punishme

nt in this case

is dispropor tionate to the penalty imposed in similar case s, considering the defe ndant. II. The jury fa

iled to properly consider and weigh the mit igating evidence against the ag gravating factor f ound. I II. The tria

l court e rred in r efusing to gran t defend ant’s m otion t o strike f rom the State’s notice of aggra vating circumstances that the defendant h ad a previous felony

conviction involving the use of violence to the person. IV. The trial courterred i n refusi ng to all ow the defendant to withdraw his guilty pleas: A. The trial court

did not allow the defenda nt to withdr

aw his guilty pleas , alth ough th ey wer e, in effect, uncounseled pleas and there we re fair and just reasons why the pleas should have been withdrawn; and B. The trial court erred when it did not allow the defendant to w ithdr aw his guilty plea s and proceed to trial, on the basis of the State’s failure to disclose Brady v. Maryland

materia l. V

. The State failed to

make full disclosur

e pretr ial of excu

lpato r y evidence. VI. The tria

l court erred i n deny

ing the d efenda nt’s motion

to continue the sentencing hearing in orde r that the d efendant’s expert-3- could evaluate medicaltest data not made available until the first day of the hearin g. VII. The tr ial co urt er red in faili ng to gra nt th e defen dant’ s chal lenge to the con stitutiona

lity of capit al punishm

ent: A. Death imposed by electroc

ution, or by any means, is cruel and unusual pu

nishment in

violation o f the Eig

hth and Fourteen

th Amendmen

ts to the United States Constitution and Article I, Section 16 of the Tennessee Constitution; B. Tennessee Code Annotated section 39-13-204 does not sufficie ntly narrow the pop ulati on of def endants c onvicted

of first degree murder who are eligible for ca pital punishment in violation of the Eighth a nd F ourteenth Amendments to the United States Consti tuti on and Article I, Sections 8 and 16 of the Tennessee Constitution; C. Tennessee Code Annotated section 39-13-204 does not sufficie ntly limit the exercise of the jury’s discre tion because, once the jury finds ag grava

tion, it can impose capital punishment no matter what mitigation i s shown, in v iolation of

the Eigh th and Fourteent

h Amendmen

ts to the United States Constitution and Article I, Sections 8 and 16 of the Tennessee Constitution; D. Tennessee Code Annotated secti on 39-13-204 mandator il y requires the jury to impose capital punishment if it finds the aggravating

circumst ances ou tweigh the mitig ating c ircumsta

nces, in violation of the Eighth and Four teen th Amendments to the United States Constitution

and Artic le I, Sections 8 and 16 of the Tennessee Constitution; E. Tennessee Code Annotated section 39-13-204 does not informthe jury

in specific

terms of its ability to impose a life sentence outof me rc y, in violation of the Eighth a nd Fourt eenth Ame

ndments to the United States Constitution and Article I, Sections 8 and 16 of the Tennessee Constitution; and F. Tennes see Code Anno tated se ction 39- 13-204 pr ohibits the jury from being

informedof the consequ ences of its failur e to reach a unanimous verdict in the penalty phase, in violation of the Fif th, Sixth, Eighth, and Fourteenth Amendments to the United States-4- Constitution and Article 1, Sections 8, 9, 10, and 16 of the Tennessee Constitution.

PROCED URAL HISTOR Y AND F ACTS Pleas of Guilty as to First Degree Felony Murder and Especially Aggravated Robbery The events which resulted in the defendant’s being sentenc ed to death began the evening of August 23, 1997, in Knox County. The first criminal episode in which the defendant was involved resultedin a “best interest” plea of guilty on January 8, 1998, in Case No. 64114-A to the a ggravated robbery of Matthew Miller, a Class B felony. See North Carolina v. Alford , 400 U.S. 2 5, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970). On Februa ry 12, 1998, t

he trial c ourt sent

enced th e defendant to twelve y ears impr isonment b ased upo n the follo wing fa cts pres ented to t

he court : MR. JOLLEY: Your Ho nor, the State ’s proof in this cas e would show the following: Fr

om the test

im ony of t

he witnesses listed on the indictmen

t, the State

would show that o n August

the 23 rd of 1997, a little after 11:00 o’clock, that Matthew Miller was leaving his work at Low e’ s, 54 31 Cl in to n H ig hw ay, he re in Kn ox Co un ty. That while he was in th e p ar ki ng lo t h e w as ap pr oa ch ed by a car that ha[d] se

veral ma les in it. One of these

males got out of the car, approached him, and asked for a lig ht. That he would identify this male as James A. Mellon. That as he lookedfor

a lighter Mr. Mellon drew a silver handg un, put it to his h

ead, an d demanded his walle t and car key s. And Mr. Miller hand

ed over t hese ite ms. That Mr. Mellon then got back into the vehicle, and that the vehicle fled the scene. That his w allet con

tained $4 0.00 and o ther per sonal item s. Of course, his car key s were also taken. All of these events occurred in Knox County , Tennessee.-5- THE COURT: Anything y ou would like to add to that stipulation of proof, sir? MR. DAVIS: Your Honor, there is one thing I would like to add. I would, fo

r the re cord, sta

te that proof that we would be confronted

with at trial, we are not a greeing to an

y elements of that, pa rt ic ul ar ly, except only with reg ard to what Mr. Mellon did, as far as putting the gun to the victim’s head. THE COURT : You are

agree ing to tha t? MR. DAVI S: No, we a

re not ag reeing to that. THE COURT : You are

not agr eeing t o that? MR. DAVIS: Every

thing else that the General has cited is stipulated. THE COURT: That is, that Mr. Mellon was at the scene? MR. DAVI S: Yes. THE COURT : All right. MR. JOLL

EY: Your Honor, we would state, that in additionto that, that the testimony of Mr. Miller and the testimony of Darryl Johnson, of the Knox County Sheriff’s Department, showed that on August the 26 th , 1997, that

Mr. Mellon, after being fully advised of

his Miranda warning s, gave a statement admitting that he was the person who had pulled the gun on Mr . Miller a

t this time, a

nd robbe d him. MR. DAVIS: Your Honor, I would also disagree

with that version of what the s tatement

say s. I don’t believe that the s t atement that Mr. Mellon gave ever indicatedthat

he held a gun to Mr . Miller’ s head, o r pointed a gun in any way at Mr. Miller. We dispute

that. T HE COURT: I will take the State’s stipulation of what it wou l d seek to prove at trial as a stipulation with the objections that y ou’ve noted.-6- I will otherwise acce

pt the plea of Mr. Mellon. During the submission hearing, the defendant was advised of the effect of the plea

of guilt y to agg ravate d robber

y a s to the other pending cas es: MR. JOLLEY: Your Honor , if we might, we would ask the Court to specific ally

advise Mr. Mellon that this conviction may be used a s an enhancement

factor if the Stat

e were to seek the death penalty or life without pa

role ag ainst him. THE C OURT: I thought I had done that, but I will do tha t muc h mo re sp ec if

ic al ly. I think that is important for him to understand. MR. DAVIS: For the

record , we have , I’v e discuss ed that a t length with Mr. Mellon. You may want to inq

uire of th is. But he do es under stand tha t. THE COURT: Mr. Mellon, you understand the c onv iction in this case can, can be used by

the State, – MR. MEL

LON: Yes, ma’ am. THE COUR T: – befor

e the jur y to seek life without pa

role in cas e number 64113, or a sentence of death in case no. 64113? Do you understand tha

t, sir? And th at ’s an ef

fe ct of a c on vi ct io n h er e t od ay, and, an d even though you ha

ve entered an Alford plea there will be a conviction? MR. MELLON : Yes, ma’am. The defendant was also indicted for the espe cially

aggravated robbe

ry and fe lony murder of Robert Scott Loveday

which occurred shortly

after the aggravated r

obbery of Matthew Miller, and which resulted in imposition of the death penalty. Tr i al was or iginall y se

t in the L oveday case in June 1998. The State filed its notice of intentto seek the death penalty on May 15, 1998. Trial wa s rescheduled

to begin on October 12, 1998. On October 9, 1998, pursuant to a plea agreement, the1 There app ears to be so me q uestion as to the actual d ate of filing o f the req uest for a ccep tance of plea of guilty

and the order ac cepting the pleas. A lthough bo th docum ents bear a file stamp d ate of “O ctober 8, 1998,” the record reflects d iscussio n, betwe en coun sel and t he court i n rev iewi ng t he pl ea f orm duri ng t he hea rin g on t he mot ion f or with drawal of the p leas, that the date o f the plea form “p rob ably sho uld be the 9th.” In addition, t he order accepting the pleas was s ign ed by t

he t ria l ju dge and “ ente red” on “Octobe r 9, 1998,” t he dat e th e submi ssi on hearing was h eld. -7- defendant entere d guilty

pleas to first degree

felony murder

and especially

aggravated robbe

ry in the Loveday case. 1 The pros ecutor e

xplained the defendant’s pl eas of g uilty as follow s: MR. JOLLEY: Your Honor , in case number 64113, Mr. Mellons [s ic] will be entering a plea of guilty to the second co unt of th e indictmen t, which charges first deg ree murder by

mea ns of felony murder, and to the fourth count of the ind ic tment, which charges es pe ci al ly a ggr av at ed ro bb er y, a cl as s A fe lo ny. The recommendation in thi s case will be as follows: That sentence be reserved

in this matter. That Mr. Mellons [sic] agrees to testify truthfull

y f or the Sta

te in any proceeding invo lving thi s incident , consis tent with the prior statements that he gave to the members of the Kn ox County Sheriff ’s Depa rtment. That

should Mr. Mellons [sic] comply with his ag reement, that the State would be recommending at

the time of

sentencing, that he receive a sentence of life with parole on the second count – THE COURT: With the possibility of parole. MR. JOLLEY: Yes. On the second count of the indictment. That that sentenc e would

be served consecutively

to the sentence that Mr. Mellons [s ic ] had previously rece ived in case number 64114. And that a sentence be imposed in the fourth count of the indictment, that is, concurrent

with the sentence in the second count of t he indict ment. THE COURT : In w

hat amoun

t? MR. JOLLEY: We have no ag reement as to a specific time. THE COURT: So, it

will b e Judge sentencing at that point on that count? MR. JOLLEY: Yes, Your H onor. Yes, Your Honor. Your Honor, we would–-8- THE COURT: That it would be agreed that it would be conc urrent, is that what I just heard? MR. JOLLEY: Concurre nt with the second count of the indic tment, Your Hon or, for a

n effective sente

nce of, o f life wit

h the possi

bility of parole, plus twelve years, or twelve yea

rs, since he’s already

been sentenced, plus life with the possibility of parole

. THE COURT : Is Mr. Mellon in the fourth count a rang e I offender for th e purp oses o f the s enten cing? MR. JOLLEY: He is for the c lass A felony, Your Honor. THE COURT: Okay. The def endant a nd his atto

rney then res ponded to

the State ’s announ

cement: THE COURT : Is th at the ag reemen t, Mr. Dav

is? MR. DAVI S: Your Honor, that isthe agr eement. THE COURT : All right. Mr. Mellon, would you

please stand, sir, and raise y our right hand to be sworn. (Mr. Mellon was so sworn.) THE COURT: Have a seat, please, sir. Mr. Mellon you’ve heard the announcement of the Attorney Genera l. Is this what you understood the ag reement to be, sir, and is that the agreement y

ou wish me to approve at this point, insofar as it is an agree ment? MR. MELLON : Yes, Your Honor. THE COURT : Let’ s go ove r it. First, do y ou under stand, sir , that y ou are e ntering a plea of guilty in the seco nd count o f the indictment to fe lony mu rde r, first degree-9- murder, by means of

felony murder , in effect, as y ou know, the State had re quested the death penalty in this case, the recommende d sent ence, however , is life w ith the pos sibility of parol e. I

t is not a promise of parol e but you certa

inly would bec ome eligible

for par ole and would go up for pa

role. An d that would be served consecutively to the sentence y ou’ve received already in 64114. In the four

th count of tha t indictment you would be pleading guilt y to especially ag gravated robbery , wherein you a re a range I standardoffende

r, and the range of punishm

ent for th at is fiftee n to twenty -five y

ears. There is no a gre eme nt . It w oul d be a se nt enc e th at I w oul d impose, and make a decision as to what the sentencewould be. But it would be agreed

that that w ould

be a sentence concurrent with the felony murder

sentence. Do you understand tha

t so far, sir? MR. MELLON : Yes, Your Honor. THE COURT: And do you understand, sir, that u ntil . . . we’ve got to the poi nt of testimony, or conclusion of the c ases of the codefenda nts, sentenci ng will be reserved, and you will wait for sentence, and it is ag

reed fu rther tha t youwill testify truthfully and consistently with the statements that y ou previously made? Do you understand a

ll that, sir? MR. MELLON : Yes, Your Honor. In addition to being orally a dvised during the submission hearin g t hat the plea agreement required his testifying ag ainst his codefendants, the request for acceptance of guilty

plea also sets out this condition with the following handwritten language:

Defendant

agrees that he will, if called upon, testify truthfully in any other proceeding in connection with this incident. Said testimony will be consis tent with th e stateme nts def endant made to Knox County Sheriff ’s Depa rtment of ficers. Sentencing in this case is reserved.-10-

A handwritten correction to this statement, subs titu ting the word “incident” for the word “indictme nt,” bea rs the init ials of the defenda nt and both

defense counsel. The court accepted the pleas and sentencing was reserve d pending the defendant’s truthful testimonyas a State ’s witnes s in any procee dings inv olv ing thes e offenses, consistent with the defendant’s prior

statemen ts to membe

rs of the Knox County

Sheriff’s Department. I

f the defendant complied with the a

greem ent, the St

ate would , in exchange, recommend a sentence of life with the possibility

of parole on the felony

murder conviction, with the sentence on the especially a ggravated robbery convicti on to be se

rved con curren tly. These sentenc es would b e served consecutively to the twelve-ye ar sentence imposed for the agg ravated robbery

conviction in Case No. 64114-A. The par ties stipul ated to the proof a s follows: MR. JOLLEY: Your Honor, the stipula ted proof in this cas e would show from the testimony of witnesses listed on the indictmen

t, that, on August the 24 th of

1997, a little after midnight, that the defendant and three other ind ividuals, Mr. Earnest Rodgers, and Mr. Anthony “T-Bone” Jones, and Mr. Davis Jones, pulled into a Cone S tat ion where an individual by

the name of Robert Scott Loveday was using a telephone. That these individuals approac hed Mr. Mellons, (sic) and Mr. Rodgers approached Mr. Loveday , that Mr. Rodgers held a gun to Mr. Loveday ’s head, that Mr. Me llons [sic] al so held a g

un to Mr. Loveday , and demanded money from him. And that Mr. Loveday was in the

processof taking his money out. That at the time he was taking his money

out Mr. An

thony Jones came up, took the gun away from Mr. Mellon s [sic] and shot Mr. Loveday . [T]his testimony woul d show t hat after this incident occurred that Mr. Mellons [sic] and th ese o ther individuals left the scene. That they were subseque ntly arrested, and M

r. Mellons [sic], after being asked about this i ncident , gave statements to the Knox County Sheriff ’s Departm ent, in which he admittedhis participation, andthe summary of the facts are which I

gave. The proof wouldalso show that he talked to an individual named Edward Beeler. [D]uring t

he cours e of his ta

lk with Mr. Beeler, after this incident occu rre d, Mr. Mellons [sic] made statements in which he said that he was the person who killed Mr . Lo ve da y. That he was ki ll ed be ca us e h e d id no t h av e a ny m on ey. It would be stipulated that all these ev ents occu rred in Knox County, Tennessee.2 The motio n, while re ferring to the de fenda nt’s “plea o f guilty,” allege s that the sa me c ond itions ex isted b oth

a s to the p leas to fe lony m urde r and espe cially agg ravate d ro bbe ry. Acc ord ingly, we p resum e that the r equ est was to withdraw bo th pleas. -11-

THE COURT: With the correctionthat Mr. Me llon’s co rrect la st name is M E L L

O N. MR. JOLL

EY: I t is, it is Mellon, Your

Honor. I did say Mellons. It is Mellon. THE COURT: Is there any thing that you would like to add to any of that stipulation, counsel, or corrections y ou want to make? MR. DAVIS: No, Your Honor.

Motion to Withdraw Guilty Pleas On December 1 7, 1998, approximately two months after his pleas of g uilty to first degree felony murder and especially

aggravated robbe

ry, the def endant filed a pro se handwritten “Motion for the Withdra

wal of Cou

nsel” asto each t

rial counsel, seekin g to hav e both relieved because neither was “competent to handle his case.” S ubseque ntly, as to each tria l counsel, the defendant filed a pro se typed “Motion for the Withdrawa l of Counsel.” These latter motions were dated December 31, 1998, and one motion had a handwritten notation that “[t]his was mailed Jan. 11 of 1998 because of holiday s,” while the other r eci ted that it was mailed “on Jan. 11 of 1999,” which would have be en the co

rrect y ear for both mo t ions. The typed motions were f iled on January 13, 1999, by t

he crimin al court

clerk. T he tw o t yp ed motions were almost identical, as were the handwritte n motions, although one of each set bore the na me of different counsel. I n brief, each motion alleged that respective trial counsel were “not

and [had] not been competent to handle [the defenda nt’s] case and that, [t]his [h ad] viola ted al l [his] rights to [a] fair trial,” had violated an enumerated

d isci plinary rule a

nd an ethics opinion, and recited that the defendant had filed malpractice claims against both counsel for “violating all [the defendant ’s] constit utional ri ghts and for Professional Negligence a nd for violating the code of Professional Responsibility.” The motions sought to have new counsel appointed before the de fendant was “to go to trial.” These motions were deniedon Ja nu ar y 19 , 1 99 9; an d, on th at sa me da y, the trial court continued the sentencing hearing from February

22 to March 1, 1999. On January 19, 1999, the same day that the pro se motions to dismiss appointed counsel were denied, counsel filed a motion asking t hat the de fendant be allowed to wi th dr aw hi s p le as of gu il ty. 2 The aff idavit of c ounsel, a

ttached to the motio n, sets out

the rea sons for t

he reque st:3 The plea agre ement was e xecut ed on Octobe r 9, 1998.

-12- 1. I am counsel for J ames Mell on and was present in Court and sign ed the Plea of Guilty executed by the defendant on October 8 , 1998. 3 Sentencing was reserved in this case. 2. Prior to the entry of this plea the de fendant had

expresse d to both his trial counsel his reluctance to testify ag ainst any

co-def endants in this or any

pending cases, as he was afr aid of what might happen to him in prison if

he were labeled a “snitc h” as the

resu lt of suc h te st im on y. 3. The defendant continued to express this re luctance to testify on the morning of

October 8, 1998, a lthough h e was willing to ot

herwise accept the offer made by

the State. Upon being advised the plea offer would be withdrawn by the

State if not accepted that mor ning, the defendant met fu rther with the de fense i nvest iga tor an d later w ith bothdefense counsel and agreed to accept the plea agreement which he execut ed and wh

ich was a ccepte d by

the Court. 4. Th e under signed, having been advised Mr. Mellon had be en placed in protective custody immediately upo n his return to Brushy Mountain Penitentiary, on October 23, 1998, wen

t to the prison and met withMr. Mellon. Prior to entry of this plea Mr. Me llon had been working in the prison, was in the gen eral population, and had experienced no pr

oblems. 5. On October 23, 1998, Mr. Mellon advised t he under signed t

hat, because of the pub licity

following

his plea w

hereby the media announced

in the newspaper, on

radio and on TV that

he had agreed to testify ag ainst his co-defe nda nts, there had been talk within the prison by ot her inma

tes which

resulted in his bein g placed in protective custody a

nd isolated from the general population. 6. The undersigne d, when he q uestioned prison authorities at Brushy Mountain, was advi sed this wa s true an d that t he y f eared r eprisals ag ai ns t M r. Me ll on ; h en ce th e p ro te ct iv e c us to dy. 7. The undersigned was also advised by Mr. Mellon that, following his plea, he had experienced direct phy sical contact and had a conversation with his co-defendant, Anthony “T-Bone” J ones , at Brushy Mountain Penitentiary. Although he did n ot d ivulge the content of this conversation, the undersigned bel ieves M r. Mellon-13- actually was, or at least felt, threatened by Mr. Jones. Mr. Mell on has, on at least one prior occasion, been phy sically assaulted by Mr. Jones while

in Knox County

Jail. 8. Cou nsel is advise d and Mr. M ellon is aw are tha t Mr. Jones ha s assaultedat least one other co-de fenda nt in these cases, r esulting in th e hosp italization of that individual, and that he has also made threats against other individuals involved in this case. This Court ha s, on several occasions, also observed the behavior of Mr. Jones and his uns ettling b ehavior in Court. 9. For the foregoing reasons Mr. Me llon advised the undersigned on October 23 , 19 98, that he was seriously c onsidering not to testify agains tanyone a s he had agreed to do in his plea ag reement. Th is decision was finally made by Mr. Mellon and directly c onveyed by him to Gen . Bob J olley

and L t. Darry l Johnson at a

meeting with themand both trial counsel on the day his co-de fendant , Ernest “E” Rogers , was set f

or trial. 10. Counsel request s that this Affidavit be attached to and made part of the Motion to Withdraw Plea of Guilt y f iled by the defe ndant, James Mellon. On January 19, 1999, the day of its filing, a hearing was held on counse l’s motion to allow the defenda

nt to withdr

aw his pleas of guilty

. The trial court first noted that the defendant had filed a letter, addressed to thedistrict attorney g eneral, asking that he be permitted to withdraw his plea s of guilt y. T he text of th

e undate d letter i s as follow s: I have ha d some time to think, and due to my two attorney [s] has [sic] more [] or less pressured me into this deal for themselves, and not me; or the fact that I to [sic] have a family to think of. I am writing to y ou in good-standing, and

would like to say if y

ou would com

e, and ta lk withme I would be willing to giv e you, and y

our office the truth of this case, and all that

you need to get y our convictions. I

will awai t your response . The def endan t test ified at the hearin g: THE COURT: Mr. Mellon, would you please stand sir and raise your right hand to be sworn? (Whereupon, Mr. Mellon was so sworn.)-14- THE COURT: Mr. Mellon, I am not going to ask y ou abou t a ny of the facts of this case, in t erms of what hap pened on the date in question and that kind of stuff. WhatI need to know, sir, is, whether or not you the

at to rn eys have informedme that on the day of Mr. Rogers’ trial, when y ou were brought here, you inf

ormed both your attorne ys and the Attorney General that y ou would not testify in that matter. Is tha t corre ct? MR. MEL

LON: Yes, ma’ am. THE COURT: And I tak

e it that . . . yo

u underst ood that th at would breach the agr eeme nt that you had made with the State regarding sentencing in this case? MR. M ELLON: I woul d lik e to sa y somethi ng. I un de r, I di d n ot un de rs ta nd th at I wa s t o t es ti fy agains t all codefenda nts. I th ou gh t i t w ou ld be An th on y, A nt ho ny J on es , o nl y. So, I d id not, I misunder stood the a

greem ent at tha t point. THE COURT: Ass um ing that it is as to each co-defendant, do y ou still understa

nd that, do

you still sta te that you would testify

or not te st if y? MR. MEL

LON: Yes, ma’ am. THE COURT: Are you

telling me you will not testify against any

of the co-d efenda nts? MR. MEL

LON: Yes, ma’ am. THE COURT: Do you understand by telling me that you’ve br

eached this agr eement? MR. MEL

LON: Yes, ma’ am.-15- THE COURT: Do you understand, sir, that as a result of breaching the agreement, if the Court find s that you have bre ached the agree ment, and I think I

have to make that finding, after talking to you and he ar in g w ha t t he at to rn eys say, that y ou are subject to one of

two thin gs happ ening? E ither the Court ordering a sentencing he aring in which yo u would be subje cted to the possibility of a sentence of de ath, or a sentence of life without parole. Or the sentence which y ou had previously ag reed to, which was life with the possibility of parole. That if you . . . if that should occur those things may ha

ppen. If the Court finds that

you would be tried, that

the plea agreement be withdrawn and that you be retr ied, then you are still subject to

all of those v arious po ssibilities

. And the agreement made with the State is g one. Do you understand tha

t, sir? MR. MEL

LON: Yes, ma’ am. THE COURT: You

are tell ing me now that you will not testify , am I co rrect? MR. MEL

LON: Yes, ma’ am. THE COURT: Have you discussed this matter with Mr. Davis and Mr. Jeffr ess? MR. MELLON : Yes, ma’am. Later, the defenda

nt testified, in resp onse to que stioning by h is counsel, as to why he

wanted to wi th dr aw hi s p le as of

gu il ty: Q Ok ay. Can you tell the Judg e why

you want towithdraw your plea?-16- A [F]rom the very be ginning of this procedure I pled not guilty upon the charges that I ’m charged with, and I continued to ask the question, would I take the p lea that wa s offered, and I kept saying , “No,” I didn’t want to take the plea. And then, come October

the 9 th , I believe, my

lawyer, B ryant

[sic] Davis said, “Talk to me,” and I told him, “No,” I didn’t want

to take the plea. So he said, “Okay,”

and so argued a continuance. So here comes Mike Cohan and, Broom, when my lawyer w asn’t present and asked me the same question. And I told him, “No,” I

did not want to take a plea. And that I

wanted to

go to tri al. And then, Mike kept saying , “Well, you’re g oing to get the death penalty if y

ou don’t take the plea agreeme nt.” And then I

said, “Well,” I

said I wanted to

take it. And I feel like that I

was pressured into t aking the plea bec ause in the very

beginn ing I said, “N o,” until

they came and asked me the same question after I sa

id, “No.” I g ot so agg

ravate d that I

said, “Y es” to the

plea ag reemen t. But during the plea agree

ment, when, the Judge was reading it off to me in CourtI

did not unde

rstand th at I w as to testi fy agains t all my co-def endants. TH E C OU RT : O ka y. Q Did you give us any rea sons before you pled as to why you did not want to take the plea offer? A For one, I didn’t want to be la beled as a snitch in prison. And two, in prison people like that get killed. And three, I neve

r grew up to, y ou know, to tell on people.-17- I fe el li ke my l if e w ou ld be th re at en ed if I wa s t o t es ti fy. Q Has y our life, or y our phy sical bod y been threa

tened at all? A No, not at

this point. Q What happened when y ou left here, after October the 9 th ? A I was on, I got back to B rushy on October the 14 th , an d , automatic all y on my return they locked me down on administrative lock down, whi ch is prot ective custody, because there were rumors going around Brushy

that some people were going to kill me. THE COURT: Now, when was this, Mr. Mellon? After you ple d – THE WITNESS: October the 14 th . Yes, ma ’am. TH E C OU RT : O ka y. Q Ho w l on g d id you sp en d i n p ro te ct iv e c us to dy? A 33 day s, until I

saw the Review Board and they reclassed me and sent me to Northeas t. Q At some point

while you were at Brushy Mountain did y

ou meet up with “T -Bone”Jones? A [Y]es, sir. Q And what happened? A Well, we wa s t al ki ng , a nd I to ld hi m t ha t I w as n’ t g oi ng to te st if y. Q All righ

t. Did he seem pleased? Angry ? At that statement by y ou? A No. He didn’ t act like , yo u know, he ’s just l i ke, “That’s cool,” you know. That’s about a ll he said.-18-

Fo llowing the presentation of proof and argume nts by respective c ounsel, the trial co urt mad e a lengthy review of the defendant’s allegations and the proof at the hearing, declining to allow the de fe nd an t t o w it hd ra w h is pl ea s o f g ui lt y:

Mr. Mellon, when he entered this plea, was asked by me whether he was g uilty , and he r

esponde d he was. He now says he doe s not feel that he is guilty of the offense, and that the plea agreement was unde r duress, as he’s described. But the Court feels that the duress that Mr. Mellon is feeling now is duress that occurred a

fter thisplea ag

reemen t.

. . . . I don’t thin

k he’s g iven me

a fair a nd just reason t o withdra w his plea, and I

am going to require h

is ple a to st

and, whic h rai ses th

e next question. The trial cou

rt then de

termined that the d

efenda nt w as entitled to have his sentences determined by a

jury, following the

presentation of proof. Capital Sentencing He

aring Edward Allen Beeler, testify

ing as the State’s first witness, said that he had known the defendant for three or four y

ears. The afternoon following the murde r, as he and the defendant were swimming , the def

endant to ld Beele

r of the e vents of t he previ ous nigh

t: Q Tell us about that, please. A When I went to pick him up to go swimming and, whe n I g ot there he kept telling me he had something to tell me. And I ask ed him what it was and he said, “I killed this boy last night.” And I – Q He said, “ I

killed thisboy ?” [emphasis in origina l] A Yes, he did. Q Did he tell you any

thing else?-19- A Yeah.

. . . [H]e said, he said, “We was out robbin’ last night,” and he said, “a

nd we rod

e up on thisboy,” and he said, “and he didn’t have no money

or nothin’ except for a watch and a dollar.” And he said, “And I shot him,” and he said, “I seen the blood,” and he said, “it popped me up and I shot him aga in.” Q Did he tell you where it happened? A He just told me

it w as at a phone booth somewhe

re in wes t Knoxville. The defendant told Beeler he had bee n drinking and smoking crack coca ine at the time of

the murder. Beeler described the defendant as excited about killing someone, although the defendant said he was still hung over after being r eleased from detoxification that morni ng. Beeler stated he didnot believe the defendant’s story until he hear d abou t the m urder o n the n ews th e nex t morn ing. Beeler’s mother encouraged him to report what he knew to author ities. On t

he mornin g of Aug

ust 25, 1997, Beeler

gave a statement concerning the matter to

a detec tive in the

sheriff ’s depar tment. During cross-e

xamination, Beele

r admitte d that, at

the tim e of his testimony, he was incarcerated

fo r a n a ggr av at ed ro bb er y c onvictio n and also had been convicted for ag gravated burgla ryand theft. He said that he had not believed the defendant beca use he did not think the defendant “was capable of

doing something like that.” During redirect examination, he said that he was neither seeking a rewa rd nor expecting to “get out of prison” in exchang e for testifying

. The State’ s next witnes s was Br ad Park, a crime s cene te chnicia n for the Knox County Sheriff’s Department, who testified that he hadbeen called to the scene of the L oveday shooting , the Cone Station on K

ingston Pi ke in Knox Cou

nty , during

the ear ly morning hours of A

ugust 24, 1997. A series of photographs which he had take n were introduced throu gh him. He said that he had locatedand photo graphed two nine-millime ter spen t cartri dge ca ses, “one in

the rear driver’s side seat, and one on the passenger’s r ear back seat.” Martha Phillips, the

Knox County Criminal Court Clerk, testifying from the r ecords maintained by her off

ice, said that the defendant had been convicte d on February 12, 1998, for the offense of aggravated r

obbery, in ca se n umber 641 14-A, receiving a sentence of twe

lve years. According to the judgment, the offense had occurred on August 23, 1997. Matthew Miller, the victim in the aggravated robbe ry which occurred at

approximately 11:00 p.m. on August 23, 1997, and resulted in the defendant’s prior conviction, identified the defendant as the man who had robbed him and testified that the defenda nt “ had st

uck [a gu n] to my head and told me to give him my

wallet a nd key s.” Miller

said he ha

d $40 in his w allet. C aptain Darry l Johnson of t

he Knox Coun

ty Sh eriff’ s Depar

tment, inve stigating th e Loveda y murder, interviewed the defendant in the ea rly evening

on August 25 and again on the morning of-20-

August 26, 1997. Audiotape record ings of the defendant’s statements were play ed for the jury , as were two statements taken by Captain Johnson from codef endant Anthon y Jon es. During the play ing of each tape, each juror

was supplied with a transcript of that tape. A nine-millimeter handgun a nd Loveday ’s watch we

re rec overed f

rom a clo set a

t the home of A

nthony Jones. Dur

ing cro ssexamination, Johnson affirmed that a k nife was fo und at the crime sc ene. He

agreed that a c

rime scene photograph appeared to show a knife at the scene but did not recall ever seeing the knife itself.
Following the testimony of Captain Johnson, the State rested its case in chief. The defendant’s half-sister, Angelia Cunning ham, testified that she had been awa

re of the defendant’s drug and alco hol abuse since his early

teenag e y ears. She

said the d efenda nt’s drug habit “was almost like aevery da y thing.” She a

nd the defendant lived with their mother in the Western Height s housin g project for thirteen y ears. The area was over

wrought with drugs and violence, wh ich worsened as she and the defendant gre w up. When the defendant turned 13, his attitude changed, and he be gan sne aking out of the h ouseand running around. She described the defendant as a follower

who was easily influe

nced by other s. She said th at he had tried to ki ll or hurt h

imself in various ways. Jackie Burge ss, a records clerk at Brushy Mountain Prison, testified that the defendant had been cited for two nonviolent violations of prison policies since his incarceration, both occurring on October 6, 1998. She said that, accord ing to the ir reco rds, he ha d been pla

ced in protective custody on October 16, 1998, after a newspaper repor ted that the defendant had “plea barg ained for life with parole instead of

death in e

xchange for testimony

agains t[his] co-defendants.” She said that, to the be st of he r kno wledge, he ha

d not r eque sted t

o be p ut int

o pro tect ive c ustod

y, but th at “a s [an ] institution we tho ught tha t that could be a pr

oblem for him later .” The de

fendant remaine d in protective custody until Novembe r 23, 1998, when he was transferred to anothe r institution. Dr. Cl aude Renee Valesco, an associate profe ssor of pathology at the University of Tennessee, testifie d that he p erformed the auto psy on the victim’s body. The autopsy revealed that the victim was struck by two bullets, both of which we re recovered. One bulle

t entere d the lef

t chest area and was recover

ed from the lower right back; the other entere d the vict

im’s left a

rm, traveled across the c hest, exi ted t he right armpit, and then went into the right arm. B oth shots were “very damaging,” and eithe

r could ha

ve been fatal. T he victim w oul d have lost consciousness within a matter of several minutes, probably less, due to the lack of blood flow to the heart. Kathy McKee te stified th at she fir st met the defendant when her father a nd the defendant’s mother briefly date d. McKee had met the defendant’s fa ther but s aid th at he was not around the fa mi ly. She had known the defendant for fou rtee n years a

nd had visited him in prison. She estimated the defendant had used alcohol “probably two, two days a w eek” since he was 14 y ears old. She also sa

id that the defendant began using ma rijuana at the age of

14. He had a reputation in the commu

nity as a nonviolent person. The day after the murder, McKee visited with the-21-

defenda nt, who appe ared asif “he ha d lost his best friend.” He was sad and depressed and aske d where something bad would be reported in the ne wspaper. Virgini a Williams, the defendant’s mother, testified that the defendant was born on December

4, 1975, and she and his father were toge ther until he was 13 months old. His father then came in and out o f the def

endant’ s life two

or three times a year. T he de fendant

had diff iculty learning in school and failed the second or third grade

and the ninth grade twice. The defe ndant was transferred

to Oak Hill Center at

the age of 10 or 11 because of a learning disability . He was later sent to Cape Cod s, appar

ently a juvenil e facili

ty, because

of truan cy problems . He also

was sent t

o Overlook for testing and to the Hele

n Ross McNa

bb Center . At the ag e of 16 or 17, he wa s sent to Cumberland Hall by the juvenile cour t system for drug

rehabilitation. The defendant was diagnosed withattention deficit hype ractivit y disorder (“ADHD”). Williams did not observe her son using drugs or alcohol and did not find out about this until he told her at the age of 14 or 15. Williams testified that she raised the defendant after his father left. While she worked, the defendant attended Boy s Club attimes and later sta ye d by himself. Sh

e descr ibed Weste

rn Heig hts as a “conc entratio n camp” w here “[y ]ou neede d to stay

to y ourself

most of the time.” The defendant didnot get into any

serious tr ouble the re but wa s involved

in auto theft as a teenager. I n 1992, she swore out a petition in juvenile court stating that she could no longer control the def endant. The morning after th

e murder , the def

endant’ s father

brough t h im home from detoxification, and the defendant appeared to be depressed. She rec alled that he told her several times that day that he loved her. When she visited the defendant in prison, he hung his head down in sorr ow. Former Knoxville Patrol Officer John Hankins te stified th at at about 12:45 a. m. on Aug ust 2 4, 1997, he o

bserved a car c ommit a tra

ffic off ense as it was lea

ving an apartme nt comp lex o n Western Avenue. Two white males were in the front sea t, and two black males were in the bac kseat. Hankins activated his blue lights and siren and attempted to make a traf fic stop, bu t th e car continued. Near the College Homes housing project, the two blac k males jumped from the car, which continued onward

. Officer Hankins followed the car, whic h eventually stopped. He apprehended

the defendant and the dr iver , David Jone s. The defendant was cite d for publ

ic intoxication and taken to detoxification for the night. Although the defenda nt and Dav id Jo nes reported that the two black males who had earlier fled from the vehicle had been trying to rob and kill them, they did not mention the night’s robberie s or murder. In his testimony, the twenty -three-y ear-old defendant provided additional informat

ion as to his background. At the time of the L oveday killing, he

was unmarried and had a y oung son. He al wa ys found it hard to pay a ttention in s choo l, was often truant, and failed the sixth grade before dropping out in the ninth grade. He periodically worke d as a ho use painter. He began drinking alcohol at age 12, which

behavior escala ted to a da

ily h abit as a

teenag er. His dr

ug use b egan w ith marijuan a a t age 9 and by the time he was 15 ye ars old, he was using crack coc aine and later morphine. He was “out on the streets sixty-three days in ‘97, and . . . drunk every day .” He wa s in an alcohol and drug rehabilitation progra m at Cumberla

nd Hall fo r nine mon

ths in1993 and stayed off drugs and alcohol for approximately six months after his release. He then began socializin g with-22-

his old friends and be gan dr inking a gain. H e had sev eral he ad injurie s during his you th, once injuring his head on a steel pole and, another time, running into a life guard stand which knocked him unconsc ious. His criminal record included auto theft, credit car d fraud, possession of

a weapon, two counts of reckless endangerment whic h were red

uced to mi sdemeanors, driving offenses, and criminal impersonation, but no violentcrimes. He had not s een his f ather in two y ears at

the time of the sentencing hearing. His fathe r had not v

isited him in

prison. A s a

child, he mostly saw his father on birthdays an d hol idays. His stepfather raised him for six or seven yea rs, and they ha

d a good relationship. His problems began at age 12 when he began running a round with older crowds “who had alway s been in trouble with the law.” The defendant testified

that in August 1997, the month when the instant offenses occurre d, he was 21 yea

rs old and li ve d w it h h is mo th er in Fo un ta in Ci ty. On August 23, he had been drinking and doing crack co caine. T hat afte rnoon, Da vid Jones pic

ked him up t

o go riding in Jones’ car. The two then picked up Anthony “T-B one” Jones (no relation to David Jones), Ernest Rogers, and Joshua Shaw. They drove

around for a time, smoking marijuana, and Anthon y Jone s d isplayed a g

un. Rogers also display ed a .38 caliber revolver. The group pur chased liquor, of

which the defendant estimated he drank

half of a bottle

before they continue d driving

to Clinton Highway. I

n the Lowe’s parking lot on Clinton Highway, the def endant observed Matthew Miller sitting in a nearby car under a large street lamp. The defendant was the only person who exited Jones’ vehicle, and he did not cover his face when he

approached Miller and asked him for a lig ht. The defendant then “showed” Miller his gun and

told Miller

to give him his money and w allet. He testifie d that he p led guil ty to the aggravated r

obbery of Ma

tthew Miller because he had “committed a crime.” After the Miller robbery , they continued driving , firs t to the Christenberry ar ea and then towards west Knoxville. The defendant testified he was “probably very intoxicated” by

this time. In Farragut, they

drove to a Cone gas station just off Kingston Pike. The station was closed, and a young man, Robert Scott Loveday , was using th e p ay p hone outside. David Jones and Anthony Jones remained in the vehicle. The defendant and Rogers, armed with guns, exited the car, intending to rob Loveday . They appr oached Loveday

as he sat in his car using the phone, and the defendant ordere d him to turn

over his m

oney . As L oveday

began empty ing his pockets, Anthony Jones got out of the car. The defendant testi fied tha t he saw w

hat he be lieved wa s a knife

come out o f Loveday ’s po cket but, be fore he could react, his gun wa s grabbed out of his hand and shots were fired. Love day

was still sit ting in the driver’s seat of his car when two shots wer e fired. The defe nd ant denied shooting the victim, say ing he had intended only

to rob Loveday , just as he had robbedMiller, but never intended to harm him. He explained t hat he had given two differing statemen ts when first questioned about the murder because he was afraid, but the last statement he gave was truthful. The defendant

said that, after the shooting, he had talked to Edward B eeler because he “had to talk to somebody. I

t was on my mind. And, you know, I couldn’t keep it inside because I was hurting.” At the time, he tho ughtthat Beeler had been “doing more than” drinking, and had used morphine “because he k

ept nodding out .” He sa

id he told B eeler “that someo ne had been shot, to-23-

watch it on the ne

ws, but [ ] did not tell

him that [he] had shot no one [sic], or who had been shot.” In December

1997, as b oth were

incarc erated , he and A

nthony Jones were

placed in the same holding cell. Jones “smacked” him, and the two fought. The def endant said he has thought about the murder every

day and fe

lt remorseful and

sorry for the

victim’s family. He fe

lt there was nothing he could hav e done to

prevent the murde

r, beca use he did not know it

was going to ha

ppen. He did not“agree with wha

t we was doin g t hat night” but never intended to harm any one, and asked the victim’s family for forg

iveness. The defendant said that he pled guilty because he felt themurder was wrong, and that he deserved to g o to prison but not to die. He deci ded not to testify pursuant to his plea a

greem ent beca use upon being taken to Brushy Mountain after enteringthe pleas, he was placed in protective custody due to the possibility of retaliation from ot herinmates. Entering the pleas was like “signing a death warra nt,” and he decided he could not live with having to “wa tch [his] back all the time,” worrying tha t he would be killed. He was aware that another inmate who had “tol d on some peo ple” had been stabbed fifteen times in prison and killed. He and A nthony Jones had seen

each oth er aga in whil e in tra nsit, waiting to return to prison after court, and he informed Jones that he would not testify ag ainst him. Duri ng cross-examination, the defendant admitted he was on probation at the time of th e murder. On that night, the group discussed robbing a drug dealer. He did not repor t the murder to Officer Hankins when stopped because he was afr aid. When later

questioned, he initially lied and saidhe never got out of the car whe n Loveday

was robbed and killed. He admitted that when h e gavehis statement to the police he had said that Anthony Rogers shot the victim threetimes, rather than two times, but di d so out of fear. The defendant said that he wa s “drunk” on the night of the murder, but conced ed that his bl ood-alcohol level was .042% at 3:00 a.m. when he arrive d at the detoxification center. He recalled telling police during questioning that he had “blowed a .042 which is not even enough hardly to r egister. ” He lied to police when he said that he had not been using drugs and that he was forced to participat e in the event s that nig

ht by Anthony Jones and E

rnest Rogers

. He admitted to seeing Lov eday at the pa

y phone and p ointing h

im out to the

others, knowing they were loo king for someone e

lse to rob. The defendant denied that L oveday was shot because he had no money a

nd said there had been no plan to k il l the next robbery victim after the Miller robbery. Dr. Thomas Schacht testified f o r the defense as an expert witness in the field of clinical ps ych ol og y. He had

interviewed the defendant for one and a half days in Aug

ust 1998 and testified as to the defendant’s history . The defendant had had persistent ear infections which

resulted in some hearing loss by

age 5. He had no

risk fac tors for e arly

developm

ental pr oblems, ot

her th an being born to a teenaged mother. However , he did have risk factors for menta l and behavioral impairme nts. His mo ther h ad been diagnosed with bipolar disorder, both pare nts were substance abusers , and his paternal grandmother had some form of severe psy chiatric illness. His natural father had a history

of violence and mu

ltiple ar rests. His pare

nts divorce d when he

was an in fant, and his mother admitted being an inconsistent and ineffective pare nt. He and hi s s ister attended church regula rly on their own, without either parent. The defendant was of ten left unsuper vi se d b y h is mother and began criminal activities in exchange f or being supplied with al cohol and drug s. He-24-

reported acting as his stepfather’s chauffeur at ag e 12, going with him to bars so that his stepfather could drink and the defe ndant cou ld drive h imhome. The defendant’s neighborhood was dang erous, and he reported being involved in many fights there as a res ultof b ein g in a ra cia l m in ori ty. In school, he earned “unsa

tisfacto ry ” grad es in conduct beginning in the second grade and continuing throu gh the sixth grade. A psyc hological evaluation in 1989 indicated inc reasing le arning and behavioral problems. His ability to think rationally was impaired. Evaluators reported a risk of brain damage caused by the

defendant’s “huffing” paint solvents betwee

n the ag es of 13 a

nd 14. Aca

demic testing showed th at the defendant had seve

re probl ems with ve

rbal com prehens ion and ma

th calcula tio ns, in which he ranke d in the fir st and sec ond perc entile ra nges. A second p syc

hiatric consultation showed symptoms of severe emotional distress. The defendant had threatened suicide and had diff

iculty controlling his impulses. As o f 1990, school offi cials did not fe el t hat the defendant’s problems were the result of attention deficit disorder or substance abuse. A later report by Mountain View Youth Developmental Center, however, noted that he ha d been a heavy ma

rijuana user since age 12. Based on his own evaluation, Dr. Schacht testified that the defendant suffe red from a severe persona lity disorder with notab le borde

rline an d antisoc ial traits . Dr. Scha cht n oted that in the se cases, individua

ls typ ically

had “mar ked diff iculties with impulsivity, behavior that is damaging

to self and others, intense and unstable interpersonal relationships.” The de fendant was found to have an I.Q. of 7 8, wel l belo w avera ge, and the ne urops ychologi cal assessmen t showed he had mild to moderat e deficits in tasks requiring “executive abi lities, the ability to plan, to pr

esent a r esponse t o a problem th at is organ ized and reasoned.” Dr. Schacht estimated that the defe ndant had an 82% chance of committ

ing ano ther viole

nt felony within ten years if g

iven the o pportunit y to reoffend. The defendant had admi tted to being armed “about seventy -five percent of the time,” if a wea pon was available, to being

in fights on a regular basis, and to committing “ hundreds” of car thefts and many residential burg

laries. However, the defendant knew right from wrong. At the conclusion of the proof, the jury sentenced the defenda

nt to death. His motion for new trial was denied on May

6, 1999, and counsel filed a timely appeal in his behalf. Petit ion for Writ

of Error C oram N obis On November 23, 1999, while his direct appeal was pending, the defenda nt filed a petition for writ of error coram nobis, asserting that he was entitled to a new sentencing hearing based on the initial suppress ion but subs equent di scovery of “hig hly mit igating” evid

ence un known to th

e defen se prior to his guilty

pleas or sentenc ing hea

ring. T his evidence consisted of a single-pag e handwritten document , the author of which was unknown, apparently memorializing that a witness named Paul James Brogan had said that he had seen a knife in or

on the victim’s hand. The state of the record is such that it ca nnot be determined whether it is a “statement” or eve n exactly what Br

ogan may have said. The trial court denied the petition, following a hearing, a nd the defendant

filed a notice of appeal, dockete d under Ca se No. E2000-00957-CCA-R3-CO, on February 4, 2000. Pur suant to the supreme court’s ho lding in S tate v. Mixon , 983 S.W.2d 661, 672-73 (Tenn. 1999), the appeal from the denial of the writ of error coram nobis was consolidated with the defendant’s appeal as of-25-

right, so that the issue raised in the coram nobis proceedi ng would be co nsidered following the disposition of the issues raised in the defendant’s appeal as of right. The issue of an alleged Brady violation, based up on the non producti on of th e Br ogan “statement,” was presente d in the defendant’s amended motion for new trial filed on May 5, 1999. Withdrawal of Counsel Prior to the completion of b riefing in this matte

r, the defendant

and his at

torney s, at his insistence, filed motions to withdraw from further repres entation

of the defendant

on appea l. This court denied the mot ions in March 2000. The defendant then filed a pro se application for extraordinary

appeal p ursuant to Tenne ss ee Rule of Appellate Procedure 10 to the supreme c ourt from the orde r deny ing his motion to withdraw counsel. The supreme court granted the application on July 10, 2000, and remanded the ca se to this court for the appointme nt of new counsel. Both of the defenda

nt’s form er couns el of re cord, who also re present ed the de fendant at trial, were relieved of further representation. I n September 2000, this court appointed attorneys G

erald L. Gulley

and Tim S. Moore

to repre sent the d

efenda nt on appe al. They

filed a st atement a dopting t he appellate brief previously filed by

former appellate counsel and later filed a supplemental brief of their own. ANALYSIS We will now c onsider t

he issuespresent

ed on app eal by

the defe ndant. I. The evidence presented in its entirety and as contained in the record was insufficient

as a mat ter of law t

o support a s entence

of death. Alth ough the defendant charac terizes this issue as a challenge to the sufficiency of the evidence, the basis for his argument is that the death sentence in his ca se is dispropo rtio nate compared to the sentences received by defendants in similar cases. Accordingly , we will consider this claim when we make our proportionality review. II. The ju ry failed to properly consider and weigh the mitigating evidence against the

aggravat

ing factor

found. The State soug

ht to estab lish two ag grava ting fa ctors: that the defendant had previously been convictedof a felony

invo lving violence to the person and that the murder was committed for the purpose of avoiding arrest or prosecution of the def endant or another. See Tenn. Code Ann. § 39-13- 204(i)(2), (6). The prior felon y conviction relied upon was that for the agg ravated robbery

of Matthew Miller, which occurred about one hour prior to the L oveday murde

r. The jury

found that only the (i)(2) factor, of a previous viole nt felony convicti on, was pr

oven bey ond a rea sonable d

oubt. As to mitigation, the jury was instructe d to consider that the defendant was an accomplice whose participation in the murder was relatively minor, the youth of the defe ndant at the time

of the offense, and that

his capa city to appre ciate the

wrongf ulness of his conduct or to conform his conduct-26-

to the law w as subst antially impaire d by a mental disease or defect or by

intoxication. See Tenn. Code Ann. § 39-13-204(j)(5), (7), (8). Alth ough conceding that the (i)(2) aggravating factor was proven, the defendant a rgues that the jury “should not have f ound” that this single factor outweighed bey ond a reasonable doubt the many mitigating circumstances presented. He concludes that the jury ’s decision reflec ts its failure to give proper

weight to these mi

tigating circumst ances, many of which we

re “not of [his] making.” The State re sponds tha t the weig

ht to be g iven to the

mitigati ng and a

ggra vati n g circumst ances in the sente ncing phase

of a capital case is entirely within the discretion of the ju ry. Statev. Pike , 978 S.W.2d 904, 918 (Tenn. 1998), cert. denied , 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036

(1999). T

he State a sserts th at, consideri ng the entire record, there is sufficient evidence to support the jury’s deter mination that the (i)(2) aggrava ting factor outweighed the mitigating circumstances bey ond a reasonable doubt. As noted by the Stat e, “[t]he weight given a ggravatinga nd mitigating circumstances is entirely within the province of the jury . The jury determines whether mitigation exists and whether the aggravating circumstances outwe igh mitigation beyond a reasonable doubt.” State v. Bland , 958 S.W.2d 651, 661 (Tenn. 1997) (c i ting State v. Barber , 753 S.W.2d 659, 669 (Tenn. 1988)). Further, referring to the (i)(2) factor in particular, our supreme court ha s stated th at “[b]y their ve ry nature, and unde

r the pro of in

certain cases, . . . some aggravating

circumstances may

be more qu alitatively persuasive a nd objectively reliable

than others.” State v. H owell , 868 S.W.2d 238, 261 (Tenn. 1993). At the sentencing he aring , the def endant te stified a s to his life history . He cam

e from a broken home, had li ttle parent al sup ervis ion, and gr ew up i n a dang erous ne ighborhood. This background

contributed to his long history of substance abuse, which began at age 9 with marijuana. By age 12, the defendant reg ularly used

marijuana, cocaine, Valium, alcohol, and embalming fluid. Eventua lly his drug use esca lated to in

clude cr ack coc aine, LSD, cry stal metha mpheta min e, and other substances. The defendant had a low I .Q. andlearning and behavioral problems, and dropped outof high school in the ninth grade. He offe red further proof to show that he was relatively

young when the offense was committed, had no prior history of violent criminal activity, was impulsive and easily influenced, and suffered from a severe personality disorder. On c ross-examination, the State established through the defendant’s witnesses that hi s m otherwas unab le to cont rol or discipline him a

nd that his sister, w

ho gre w up in the

same environment as th e defendant, did not have a criminal history and had never killed anyone. On rebutta l, the State

present ed testimo ny t

hat the de fendant bragg ed to a friend that he, personally , had killed the vi ctim and tha t he seemed excited about it. In addition, witnesses testified that the defendant was on probation at the time of the murder, that the d efenda nt stated t hat the vi ctim

was killed because he had no money , and that the defendant had an extensive criminal record. The record reflects that the jury was properly

instructed on the appl icable statutory aggravating

and mi tiga ting ci rcumstances. The defendant does not contend that the tria l court refused to in struct the j ury on any other requested mitigating circumstance s. “It is an elementary-27-

princip le of

law that jurors are presumed to follow the instructions of the trial court.” State v. Williams , 977 S.W.2d 101, 1 06 (Te nn. 19 98) (ci ting Statev. Cribbs , 967 S.W.2d 773, 784 (Tenn. 1998); State v. Laney , 654 S.W.2d 383, 389 (Tenn. 1983)). As the State observes, the jury rejected the State’s attempt to establish the (i)(6) aggra vator, that the murder was carrie d out to avo id arre st or pro secution. The fact of the defendant’s prior violent f elony conviction was c learly prove n by evidence of the judgment convicting the defendant of the earlier Miller robbery. Against this factor, the jury weig

hed the statutory fa

ctors and other proof offered by the defendant in mitigation. Following our

r eview of the record on appeal and a pplicable authorities, we conclude that the evidence is sufficient

to support the jury’s finding that the aggravating

circumstance outweighed the mitigating circumstances bey ond a reasonable doubt. III. The trial cour t e rred in re fusing to gra

nt defendant ’s mot

ion to str

ike from the State ’s n otice of aggrava ting circ umstanc es that t he defendant had a previous felony c onviction involving the use of violence to the person. The application of the section 39-13-204(i)( 2 ) factor required the jury to find beyond a reasona ble doubt that“[t]he defendant was previously convicted of

one (1) or more felonies, other than the present charge, whose statutory elements involve the use of violence to the person.” At the conclusion of the sentencing hearing and in his motion for new trial, the d efend ant argued that the (i)(2) aggra

vator should be strick en, theorizing that the Miller robbery and the Loveday robbery /murder w ere par

t of a cr ime spree , and, as s u ch, the Miller robbery conviction could not be separately

considered as an aggravati ng circumstance in the crimes ag ainst Loveday which occurred only

one hour later. On appeal, the defendant arg ues that the relevant inquiry

turns on the meaning of the words “previously convicted” i n sect ion 3 9-13- 204(i )(2). A ltho ugh acknowledgingcase law pointing to a contrary result, he argues that

the phra se should

be construed consistent with the definition of “prior conviction” as set forth in Tennessee Code Annotated section 40-35-106(b), citing th

e holding of our sup

reme court in State v. B louvett, 904 S.W.2d 111 (Tenn. 1995), in s upp ort. Section 40-35-106(b) contains part of the gene ral sentencing provisions applica ble to multiple offenders and provides as follows: “‘Prior conviction’ means a conviction for an offense

occurri ng prior to the commission of the offense for which the de fendant is being sentenced.” Interpreting this lang uage, the Blouvet

t court concluded tha

t the phrase “‘prior conviction’ means a conviction that has been adjudicated prior to the commission of the more recent offense for which sentence is to be imposed.” 904 S.W.2d at 113. The defenda

nt argu es that because both the (i) (2) sta tu to ry aggravating circumstance in a capital case

and the aggravating

factor of a prior conviction in a noncapital case are used to enhance a defendant’s possible penalty, the terms should be g iven similar

meaning . Thus, by

this arg ument, because the Miller robbery

conviction was not adjudicated prior to the commission of the Loveday robbery/murd

er, t he forme

r convic tion should

not be con sidered

as a previous conv

iction in-28-

sentencing the def

endant under sec tion 39-13 -204(i) (2). Withou t this sole a

ggra vating c ircums tance , the defendant’s death sentence could not stand. The State responds that as long as the fact of a p rior violent felony conviction has been adjudicated

prior to th

e sentencing he aring in the capital case in which it is offered, such conviction may be used to establish the (i)(2) aggr a vator

. In fa

ct, our su preme c ourt ag ain rec ognized t his principle in State v. Stout , 46 S.W.3d 689, 719 (Tenn. 2001) (appendix):

Our Supreme C ourt has recently reiterated its oft-repeated h oldin g that, “so long as a defendant is convicted

of a v io le nt fe lo ny prior

to the sentencing hearing at whic h the previous conviction is intro duce d, this aggravating circumstance is applicable.” State v. Hodges , 944 S.W. 2d 346, 357 (Tenn. 1997) (emphasis in original). I n Sta te v

. Nichols , 877 S.W.2d [722,] 736 [Tenn. 1994], the Courtspecific ally rejected t he defendant’s contention of a due process violation, even where the prosecutor admitted that the defendant’s multiple trials had been ordered

in su ch a way

as to create an additional agg ravating circumstance. And in State v. Caldwell , 671 S.W.2d 459, 465 (Tenn. 1984), the Court specifically r ejected the argumen

t that a prior conviction based on a subsequent crime pe rmit ted an ex post fa cto law. This issue is the

refore without me

rit. Moreover, Blouvet

t , cited by the

defenda nt in suppor

t of this ar gument, is disting

uishable on several points. Most significantly, Blouvet t was not a capital case. Beca use differing sentencing

schemes have been set forth by

the legislature for capital and noncapital c ases, and there is no indication of a legisla tive inten t to apply definitio ns found in

one sect ion of the code to pr

ovisio ns in anot her section of a diff

erent c ode volume , th e holding in Blouvet tdoes not support the defendant’s argument in this regard. Further, it appears that the defendant’ s suggested interpretation of a “previous conviction” under section 3 9-13-204 (i)(2) w ould unduly restrict the stated language of that code section. As our supreme court recently

reiterated in State v. Owens , certain con sider ations must be applie d in statutory construction:

In deriving

le g islative i ntent and

purpose, we must not

“unduly r estrict [ ] or expand [ ] a

statute’ s covera

ge bey ond its intende d scope.” Rather, we are to ascertain a statute’s purpose fr om the plain a nd ordinary mea

ning of its language “without forced or subt l e construction that would limit or extend the meaning of the language.” Moreover, the Gene

ral Asse mbly h as specifically

directed that criminal statutes . . . be con strued “ accord ing to the fair i mport of their terms, including reference to judicial decisions and common law-29- interpre tations, to promote jus ti ce, and effect the objectives of the criminal code.” Tenn. Code Ann. § 39-11-104 (1997). 20 S.W.3d 634, 640 (Tenn. 2000) (citations and footnote omitted). A plain reading of section 39-13-204 (i)(2) show s that the t erm “pr eviously convicte d” is unambiguous and therefore need not be read in pari mater ia with any

other sentencing statute. As the supreme court stated in State v. Ca ldwell : The language in the statute, “previously convicted” clearly

indicates that the date of the conviction, not of the commission of

the crime , is the important factor. T he order i n which the crimeswere a ctually committed is irrelevant, as long as the convictions have been entered before the sentencing hear ing at which the

y a re introd uced into evidence. 671 S.W.2d 459, 465 (Ten n. 1984); see also State v. N ichols , 877 S.W.2d 722, 736 (Tenn. 1994). Thus, we conclude that the defendant’s arg ument in this regard is without merit. IV. The trial court erred in refusing to al lo w the defendant to withdraw his gu ilty pleas. A. The tria l court did not allow the de fendant to wit

hdraw his guilty

ple as , although they were, in effect, uncounseled plea s a nd there we re fair and just rea sons why the pleas should have been withdra

wn. The grava men of thisclaim

is that his pleas of guilty we re, in essence, “uncounseled” and, therefore, involuntary, and, furthe r, that he pr

esented “fair a nd just” r easons f or withdr awing t hem. We will examine these

contenti ons. On January

19, 1999, p

rior tosentencing, the defendant moved to withdraw his g uilty pleas in the Loveday

robbery/murde

r. Later that same da

y, a hea ring was held, and the motion was denied. On appeal, the defendant arg ues that the trial court

should have permitted the withdrawal of his pleas on the fo l lowing grounds: (1) he was pressured into taking the plea agreement; (2) he did not understandthat the agreement required him to testif

y a gainst a ll of his codefendants; (3) he did not have an opportuni ty to d iscuss the plea agreement with his mother before accepting it; (4) he was deniedthe right to counsel at the time the pleas were entere d; and (4) he felt

his life w ould be at

risk in pris on if he testified against his codefendants. Although the defendant’s brief focuses on the standardfor withdrawal of a guilty plea pur sua nt to Tennessee Rule of Criminal Procedure 32(f), implicit in his arg

ument is the

claim th at his gu ilty pleas were not voluntary, understanding , and knowing . We now will conside r these c laims.-30- Voluntariness of Pleas In Boy kin v. Ala bama , 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 27 4 (1969), the United State s Supreme C ourt held that the r

ecord mu st show tha

t a guilty plea wa s made vol

u ntarily , un de rs ta nd in gl y, and knowingly

. Id. , 395 U.S. at 242, 8 9 S. Ct. at 1711. As our supreme court stated in State ex rel. Barnes v. Henderson , “[i]t is rec ognized in this State, as in all jurisdictions, that a plea of g uilty must be mad

e volunta rily and with f

ull under standing

of its con se q uences.” 220 Tenn. 719, 727, 423 S.W.2d 497, 501 (1968). The record must establish that the defendant was awareof and waived his Fifth Amendment privilege ag ainst co mpu lsory self-incr imination, his right to trial by jury , and his right to confront his accusers. In Tennessee, the a

cceptance of a guilty

plea is furthe r gove rned by Rule 11 of the Tennessee Rules of Criminal Procedure and our supreme court’s dec isions in Statev. Mackey , 553 S.W.2d 337 (Tenn. 1977), and State v. McClintock , 732 S.W.2d 268 (Tenn. 1987). Rule 11 and Mackey require the trial judge to address the def endant personally in open c ourt and explain the following informat ion and ri ghts: a.) the nature of the offense to which the plea is off ered; b.) the mandatory minimum penalty and the ma ximum penalt y prescribed by

law; c.) when the defe

ndant app ears wit

hout coun sel, the r

ight t o be represented

by an attorney , and, if indigent, counsel will be appointed to repre sent him; d.) the right to p lead not guilty or pe rsist in that plea if such a plea has been previously

entered; e.) th e r ig ht to tr ia l b y ju ry; f.) the right to the assistance of counsel if the defend ant el ected t o go to trial; g.) the right to confront and cross-examine the state’s witnesses if he electe d to go to t

rial; h.) the privileg e aga

inst compulsor

y se lf-incr imination, which could be invoke d if he we

nt to trial ; i.) a plea of guilty

waives the right to a trial, and o nl y a sentencing hearing will be conducted;-31- j.) the trial judg e may

ask him questions aboutthe offenses to which he is p leading guilty , he must answer the questions under oath, and his answer s may

later be used ag ainst

him in a prosecution for perjury or fa ls e s ta te me nt if

he do es n’ t a ns we r t he qu es ti on s t ru th fu ll y; k.) a different or additional pu nishm ent may result by reason o f his prior convictions or

other factors which may

be established after the entry of his plea; a

nd l.) evidence of any

prior co nvictions ma y be presented for consider ation in de

termining the appr opriate punishmen

t. In addition, the trial judge must ascertain whethe r t here is a factual basis for the plea , the ple a is being voluntarily entered, the d efendant’s understanding of his entry of the plea, and whether th e defendant’s willingness to plead g ui lt y is a result of discussions betweenthe district

attorney general and the defenda

nt or his attorney before accepting the de

fendant’s plea. Chamberl ain v. Stat

e , 815 S.W.2d 534, 538-39 (Tenn. Crim. App. 1990) (footnotes omitted). The additional advice requirement was explained in McClintock , 732 S.W.2d a t 273, that it must be made clear to thedefendant pleading guilty that the resulting judgment of conviction may be used to en

hance th e punishme

nt for any subseque nt offen ses in a la

ter proc eeding . In o

rder to ensure that the plea is entered “intelligently”and “knowingly ,” “ Boy kinrequires that the trial court ‘canva ss[ ] the matter with the accused to make sure he has a full under s tand ing of what the plea connot es and of its consequences .’” Blanke nship v. Sta

te , 858 S.W.2d 897, 904 (Tenn. 1993 ) (quot ing Boy

kin , 395 U.S. at 244, 89 S. Ct. at 1712). An accused is not entitled to withdraw a plea of guilty as a matter of right. State v. Turner , 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995). Th e questio n of whet

her he should be pe

rmitted to do so is addressed to the sound discretion of the trial court reg ardless of when the motionis filed. Id. An appellate cou

rt will not interfe

re with the exerci se of this d is cretion unless cl ear abu se appears on the fa

ce of the record , meaning

that ther e is n o substa

ntial evidence to support the conclusi on of the t

rial cou rt. The defendant

does not complain that he was not aware of his federa l constituti onal “ Boy

kin rights,” and the su

bmission he aring t

ranscr ipt reflects a valid waiver of these rights. Rather, in se eking the withdr

awal of h is pleas in

the trial court, th e defendant firs t argued that he d id no t unders ta nd that the recommended sentence of life with the possibility of parole was conditioned upon his testifying ag ainst all of his codefendants. The plea agreement for

m executed by the defe

ndant expressly provides that the:-32- Defendant

agrees that he will, if called upon, testify truthfully in any other proceeding in connection with this incident. Said testimony will be consis tent with th e stateme nts defe ndant mad

e to Kno x County Sheriff' s Department officers. Sentencing in this case is reserved. The transcript

of the submission hearing reflects that the trial court questioned the de fendant as to this pr

ovision of

the agr eement: THE COURT : And do y ou under stand, sir , that until

. . . we’ve got to the point of testimony, or conclusion of the ca ses of th e codefenda nts sentencing will be reserved, and y ou will wait for sentence, and it is agr eed further that y ou will testify truthfully and consistently with the statements that y ou previously made? Do you understand a

ll that, sir? MR. MELLON : Yes, Your Honor. We note that the defendant’s statements ar e that at the time of the two incide

nts, his companions were David Jones, Antho ny Jones , and Ernest Rogers. At the hearing , after the defendant had testified

as to his unde

rstandin g of the

plea ag reemen t, he was then asked about his intentionsas to testi fying in the trials of his codef endants: MR. M ELLON: I woul d lik e to sa y somethi ng. I under, I did not understand that I was to testify ag ains t all co

defenda nts. I th ou gh t i t w ou ld be An th on y, A nt ho ny J on es , o nl y. So, I d id not, I misunder stood the a

greem ent at tha t point. THE COURT: As su ming that it is as to each co-defendant, do y ou still understand that, do you still state that y ou would tes ti fy or not te st if y? MR. MELLON : Yes, ma’am. Later, in the hearing, the

defendant agreed, during

cross-examination, he had understood that his guilty plea ag reemen t required his testim

ony at subseq uent tria ls:-33- Q Mr. Mellon, you understood that you were ple ading g

uilty to the offense, and that

the only thing that wa s being reserved was the right of sentence? Whether you would be sentenc ed to life with parole, life without parole, or death? And on the especially a

ggrav ated rob bery that y ou would be sentenc ed to fift

een to twe

nty -five y ears? You understood that those two things were specific ally

reserved, didn’t you? A No, I understood that the plea agree ment was l

ife with p arole which was fifty-one

years, with the especially ag gravated robbery r an concurrent and twelve y

ears run consecutive. Q And that that s entence recomme

ndation w as condit

ioned upon your test ifying? A Correct

. Q That the sente ncing r ecommen dation ha

d nothing to do with

your en te ri ng th e p le a o f g ui lt y? A I don ’t under stand tha t. Could y

ou clari fy it? Q That your sente ncing r

ecommen dation ha

d nothing to do with your entering the plea

of guilt y to first deg ree mur der or to especia lly aggravated

robbery . It was stric tly based on whether or not you wo ul d t es ti fy? A Yes. The trial cou

rt concl uded that the defe ndant’s p leas o f guilty we re voluntary a

nd he had un de rs to od th at th e a gr ee me nt re qu ir ed hi s s ub se qu en t t es ti mo ny:

Mr. Mellon gave a

free, voluntary , and knowing plea ag reemen t, knowing that he would testify ag ainst at least Mr. Jones who now he is fearful of, and that he

took this ple a under t

he stres s of thing s. That he understood what the agreement wa s. He has told us today that he clea rly understood the ag

reement, and that i t was c ondi tion ed upo n his testi fying.-34- . . . . Based upon the letter that Mr. Mellon has sent, based upon what he said here today , at the time of the plea agreement Mr. Me llon made a free, voluntary , and knowing plea, knowing the conting encies and know i ng that he had to testify ag ainst at least one of the codefenda nts, if not a

ll of them. I think he knew he had to t estify agains tall of them. But the one that’s a b ig conc ern her

e was Ant hony Jones. He knew that then. The reco rd

supports the trial court’s finding that the defendant understood the plea agreement and his obligation was to testify ag ainst all of his codefendants in exchange for the State’s se ntencing recommendation. The def endant a lso asserts that he was pressured or coerc ed into pleading guilty . At the hearing on the motion, the defendant informed the trial court of his reasons for wanting to withdraw the pleas. He testified that from the beginning of the procee dings, he informed his attorney s that he didnot want

to accept a plea agreement but wanted to go to trial. He continued to decline the offered plea agreement until October 9, 1998, three da ys prior to when the tr ial was to begin. On that morni ng, the defendant’s counsel came to court pre pared toargue

for a co ntinuanc e of the t rial. They first met with the defe

ndant, informing him that the prosecutor would withdraw the plea offe r if it wa s n ot ac ce pt ed th at da y. He again informed his attorneys that he would not plead g uilty. After the attorneys left, Mike Cohan, a n investigator

employ ed by defense counsel, visited the

defenda nt. The defendant later testified that Cohan continued to pressure him, telling him hewould receive the death penalty if he wen

t to trial, and that he became agg ravated and finally

said “yes”to the plea agreement. Defense c ounsel Jeffress stated he was “astounded” and “amazed” when Coha

n came from the jail and informed

counsel that the defendant had decided to plead. Cohan did not testify at the hearin g. Defens e counsel statedthat, af ter hea ring fr om Cohan th at the defendant had dec ided to plead gu il ty, they returned to the jail to confirm the defendant’s intention and explain the plea pro cess to him. Alth ough the record does not reflect when the plea proposal was firs t offered to the defendant , it is appar ent from t he defe ndant’ s testimony that he discussed the matter with counse l on several occasions. Prior to addressing the defendant’s motion to withdraw h is guilty pleas, the cour

t heard h is pro se motion for withdrawal of his counsel, and the following exchange took place: THE COURT: Can you give me an example of a way

in which they have not [ze alously

repres ented y

ou] at this po int?-35- MR. MELL ON: I feel like that, I feel like I should have ha d m ore time, or more access to the lawy ers consider

ing my case, as severe as it is, and al so, that, I

never, I , I wa

nte d to go t o trial from the very beginning. So, I f

eel like that, well, this is it. I f eel like I needed to go to trial, and I feel like I was coerced into taking a plea agree ment. TH E C OU RT : In wh at wa y? MR. MELL

ON: Not, I won’t

say by the lawyer s. But I feel like, y ou know, they

knew I didn’t wa

nt t o take the plea agreement from the very beginn ing. And then I feel like, I

feel like the question should have died right then, and let me pro ceed on

going to trial. Instead, the question kept coming up, to take the plea or not. T he defendant’s claim that he was pressured into pleading guilty is contradicted by hi s testimonyat the s ub mission hearing. At that hearing, he testified that he ha d gone over the entire request for waiver

of jury trial and accept ance of guilty plea for m, parag raph by parag raph, with his counsel. As ke d w he th er he wa s e nt er in g i nt o t he ag re em en t “ fr ee ly, vo lu nt ar il y, a nd kn ow in gl y, that is, knowing what y ou are doing of your own free will, and without pressure from any one,” the defendant answered , “Yes, Your Honor.” The defendant further testified under oath at the submission hearing that he had thoroughly

discussed the matter

with both of his attorneys and that he was satisfiedwith their efforts and services on his behalf. Although the defendant

implies that he was pressured into pleadingguilty by repeated discussion of the issueby counsel and then by the defense team investigator, the investigator, as we ha ve stated, did not testify during the hearing on the motion to withdraw the guilty pleas. Counsel conceded to the court that he was awar e that the investig ator met with the defendant but did not know th at co-c ounsel wa s not pres ent. The record reflec ts that the defendant had entered g uilty pleas on three o ther occ asio ns, including the Miller robbery, w as familiar

with the plea agreement proce ss, and was aware that one of his options was to go to trial. “Thestandard was and remains whether the plea repre sents a voluntary and intellig ent choice among the alternative courses of action open to the defendant.” North Carolina v. Alford , 400 U.S. 25, 31, 91 S. Ct. 160, 164 , 27 L. Ed. 2d 162, 168 (1970 ). In addition, by h

is own test

im on y, the defendant

did not cla

im that the

attorne ys c oerced

him into ultimately

pleading guilty , only that they and their investigator repeatedly advised him to accept the plea agreement. “Counsel may use reasona ble persuasion when making therecommendation.” Parham v. State , 885 S.W.2d 375, 384 (Tenn. Crim. App. 1994) (footnote omitted). The defendant has presented no othe r evidence t o support this claim, and we conclude that the record supports the trial court’ s determination that the de fe nd an t’ s p le as of

gu il ty w er e f

re e a nd vo lu nt ar y.-36-

The defendant next argues that he should

be permitted to with

draw his g

uilty pleas be cause of his fear that he would be killed or harmed by other inmates if he c arried

out his ag

reemen t to testify ag ainst his codefendants. After accepting the

plea agreement on October 9, 1998, and returning to prison on October 14, the defendant stated he was immediately placed in an “admini strative loc k down” because rumors had circulated

that he would be killed. He remained in lockdown for thirty -three day s and was then tran sfer

red t o Nor thea st Cor

rect iona l Comp lex. The defendant stated he then decided not to testify because in prison, he would

be labeled a “snitch” and “in prison people like that g et killed.” He recalled

that in December 1997, after their arr est, he and codefendant

Anthony Jones were once placed in a holdin g cell together. Jones hit him for no apparent reason, and the two foug ht. The defendant testified that he was also aware that Anthony Jones had had a fight with another codefe ndant, David Jones, in which David Jones was nearly killed . A lmost a y ear af ter their first encounter, fo ll ow in g h is pl ea s o f g ui lt y, the defe ndant ag ainencounte

red Anth ony

Jones in a ja

il cell. The defendant informed Anthony Jones that he would not be testifying a gainst him, to which Jones responded, “That’s cool.” T he defendant explained why he had not wanted to plead guilty but admitted that he had not beenphysically harmed or threatened by

anyone in prison since

entering the guilty pleas. The trial cou

rt found t hat the de fendant ’s fear s could

not have affected the voluntariness of his pleas because

they did not ar

ise until after

he pled guilty a

nd returned to the prison. The court observed that the “ duress th at Mr. Me ll on is feeling now is duress that occurred af ter this plea agreement.” The record supports the court’s findi ng. The defendant testified at the submission hearing that he un derstood t hat the State’s sentencing recommendation was ba sed on his truthful testimonyin any other proc eedi ngs invo lving the Loveday robbery a

nd murder. Moreover, the defendant conceded at the hear ing on the motion to withdraw the pleas that he understood that the sentencing recommendation was based only on his truthful testimony and that he knew w hen he entered the pleas that he would be required to testify a gainst Anthony Jones in particular. A tthe time he entered his pleas, the defendant expressed no conce rn fo r h is sa fe ty, despite an earlier altercation withJones, and, in fact, waited until several months later to r equest that his pleas be withdrawn. Thus, we conc lude, as d

id the tria l court, th at t he defendant’s claims of fear for his safety do not pr ov id e a ba si s f or wi th dr aw al of hi s p le as of

gu il ty. On appeal, the defe

ndant als o argues that he was denied the right to couns el in ente ring his pleas. He says that because his decision to plead came after he was visited by an investiga

tor, and he had persistently declined the same advice from his attorney s, he was essentially “ uncounseled” in entering the pleas. As further evidenc e of this claim, he argues that because he had

filed pro se motions to withdraw counsel, the trial court was aware that he had a problema

tic rela tionship with his attorneys. However, the record does not support the defendant’s claim that his decision to enter a plea wa s without the advice of counse

l on eithe r of thes e grounds. This a rgument ignore s trial counsel’s testimony that after the de fendant had

spoken wi

th the investigator and decided to plead gu il ty, both his attorneys met with him to confirm his decision, and, appar ently sat isfied, the n informedthe prosecution of his decision and proceeded to the submission hearing. Further, at that-37-

hearin g, the defendant testified that he had gone ove r each paragrap h of the a

greem ent with hi s at to rn eys and unde

rstood its p

rovisions . Althoug

h he file d severa

l pro se mot ions to “withdraw” counsel after entering his pleas, he told the court a t the submission hearing that he was sa tisfied w ith their efforts on his behalf and that he had discussed the ag reement with them. Fi na ll y, the defendant argues that he did not have the chance to discuss the plea agreement with his mother before accepting it, and he felt that his decision was “just a rushed thing.” Again, the record does not support that he had any

reservations about entering into the plea ag reement or was “rushed” into doing so. He does not reveal how f urther discussions with his family or additional time would have altered his decision. In this matter, the record b elies the defendant’s contention that he did not understand that sentencing pursuant to his plea agreement meant that he would testify against his codefendants. Nor is there evidence to show that the defendant

was coerced by

his counsel or the investigator to plead gu il ty. While he may later have dec ided he would not carry out the agreement to testify based on perceived danger or threats from

other inmates, the record supports the trial court’s finding that the defendant voluntarily , knowingly, a nd understandingly

entered guilty

pleas in this case. Fair and Just Reason The defendant

further argues that even if his plea s were not constitutionally invalid, there a re “fair and just” reasons which satisfy the standard for withdrawing a plea unde r Rule 3 2(f) of

th e Tennessee Rules of C rimina l Procedure. In brief , these reasons consist of the defendant’s unwillingness for the months prior to his pleas of guilty to enter such pleas, of the alleged pre ssure upon him to d

o so, and o f his fea

r as to what mig

ht happen to him if he te stified su

bsequen tly a s a State’s w itness. Rule 32(f) governs the situations in which a guilty plea may be

withdr awn prio r to a final judgmen t: Withdrawal of Plea of Guilty. A motion to withdraw a plea of guilt y may be made upon a showing by the defendant of a

ny fair a nd just reason only before

sentence is imposed ; but t o corre ct manife st injustice, the court after sentence, but before the judgment becomes final, may

set a side t he judgment of conviction and permit the defendant to withdraw the plea. Tenn. R. Crim. P. 32(f). In this matter, s ince the

defenda nt moved th

e court t o withdra w his pleas prior to sen tenci ng, the more len

ient “fa ir and jus treason” standard applies. However, the burden of establishing that the plea shou

ld be wit hdrawn is on t he defendant. State v. Turner , 919 S.W.2d 346, 355 (Tenn. Crim. App. 1995).-38-

In determining what constitutes a “fair and just reason,” this court has looked to the factors reliedupon by the Court of Appea ls for the Sixth Circuit. See State v. Pa trick Maxw ell , No. E1999- 00124-CCA-R3-CD, 2000 Tenn. Crim. App. LEXI S 848, a t **25-26 ( Tenn. Crim. App. Oct. 27, 2000); State v. Antonio Demonte Lyo ns , No. 01C01-9508-CR-00263, 1997 Tenn. Crim. App. LEXIS 773, at *38 (Tenn. Crim. App. Aug. 15 , 1997 ) (cit ing United States v. Alexander , 948 F.2d 1002, 1003 (6th Cir. 1991)). As discussed in United States v. Spencer , 836 F.2d236, 239- 40 (6th Cir. 1987), cert. denied , 486 U.S. 1009, 108 S. Ct. 1736, 100 L. Ed. 2d 200 (1988), those factors are:

1. The leng

th of time b etw een the entry of the guilty plea a

nd the filing o f the motio n to withdr aw it; 2. Why the ground s forwithdrawal were not presented to the court at an ea rlier point in the pr

oceedings; 3. Whether the defendant has asserted and maintained his innocence; 4. The circumst a nces underly ing the entry

of the plea of guilty , the nature and background of the defenda nt, and whether the defendant has admitted guilt; and 5. Once the defendant has established a fair and just reason, whether the prosecution will be prejudiced should the plea be withdrawn. We now will a

pply these considerations to this matter. Because of the relationship between the first two considerations, we will review them together. In counsel’s affidavit, which was attached to the motion to allow the defe ndant to withdraw his guilty pleas, the defendant’s c oncernswere tr aced asto possible

retalia tio n by codefe

ndants if he testifie d at their

trials. A ccordin g to the a ffidavit , he had b een concerned , prior to the entr y of his pleas, “of what might happen to him in prison if he were lab eled a ‘snitch’ as the result of such testimony.” The def

endant a dvised co unsel on O cto ber 23, 1998, tha t he had be

en placed into protective custody

because of the knowledge of other inmates as to his ag reemen t to testify agains t his codefe

ndants. H e told

counsel on that date “that he was seriously considering not to testify agains tanyone

as he had agreed to do in his plea ag reement.” His decis ion as to th is matter became final, and the State was so advised, the day that the defe ndant wa s to testif

y a gainst h is codef endant, Ernest “E” Rogers. The motion, supplemented by counsel’s affidavit, to withdraw the guilty pleas was filed on January 19, 1999. Our review of the first two considerations, t h e length of time between the guilty pleas and the motion for their withdrawal, as well as why the grounds for withdrawal were not earlier

presented to the court, does not benefit the d efendant. At the time of his pleas of guilty , he was aware of possible reprisa ls as a re sult of his t

estify ing ag ainst his c odefend ants. Yet, he waite d approxima tely two and one-half

months toseek to w ithdraw h is pleas, not doing

so until he

was to testify

agains t-39-

a codef endant. T

hus, the de

fendant reweig hed his options, using essentially the same inf ormation he had at the

time of hispleas but , this time, reached a diffe rent conclusion. Acc ordingly, we conclude that his motion was not timely and was ba sed solely upon a cha nge of mind. Both at the submission hearing and the sentencing hea ring, the defendant admitted his role in the robbery a

nd murder. At sentencing, he testifi ed he kne w what he had done was wrong but fe

lt he did not deserve the deat h sentence for his participation. Only in arguing to withdraw his pleas didthe defe

ndant ass ert that h

e was not guilty of t

hese off enses. T hus, our c onsidera

tion of this “important factor” favors the State. See Spencer , 836 F.2d at 239. At the submission hearing, the defendant testified that he was 22 ye ars old, that he completed the eighth grade in school, that he could “r ead and write without any trouble,” and that he was guilty as charged. Although g iven the opportunity, the defe ndant asked no qu estions e vin cing a misunderstanding of or seeking clarifi cation as to the guilty plea pr ocess or agreement. The defendant had previous felony

conv ictions for theft and fraudulent use of a credit card and mi sdemeanor

convictions for reckless driving, driving with a re voked license, evading ar rest , reckle ss endan germent , shop lift ing, and vand alism, as w ell as for theft, tr espass, and possession of a we ap on on sc ho ol pr op er ty, these latter charges incurr ed from the same incident. Further, he had juvenile convictions for

auto theft an d larce

ny. Thus, the

defenda nt had pre vious exper

ience w ith the criminal justic e sy stem. As the trial court correctly re cited, the standard for withdrawing a g uilty plea, under Tennessee Rule of Criminal Procedure 32(f), req uires tha t the def endant show a “fa

ir and jus t” reason in support. Considering eac h of the de fendant ’s proff

ered re asons for

withdraw al of the

pleas, the trial court concluded, “I don’t think he’s gi ven me

a fair and just reason to withdraw his plea, and I am going

to require his plea to stand . . . .” On appeal, the defendant presents three reasons why he

was pressured

into his pleas of

gu il ty, making them involuntary: “fea r of the possible consequences of testify ing against co-defendants”; pressure because of “the State’s and the trial court’sinsistence that he decideimmediately whether he would try the case

or plead”; and not having the “benef it of fami ly

input to his d

ecision. ” Thus, according to the defendant, he has present ed a “fa ir and jus t” reas on why

he should b e permitt

ed to withdraw hi s p le as of

gu il ty. We respectfully disag ree that any

of these constitute a

“fair a nd just” reason for withdrawing his pleas of g uilty. The record shows that the defendant was fully advised of his rights, which he waived, before entering knowing and voluntary plea s of guilty. He showed no hesitation or lack of understanding by his responses dur ing the submission hearing. The benefit to the defendant of the ple as was evident, for, by doing

so, he would avoid the risk of b eing se ntenced to death, and the sentences imposed would be s erved c oncurre ntly . The poss ible risk o f testify ing ag ainst his c odefend ants should have be en jus t as apparent to the defendant prior to the pleas as it was a fterwards. A final observation from Spencer is relevant to our determination that the defendant did not provide a basis for withd rawing his pleas of guilt

y:4 373 U .S. 83, 83 S. Ct. 1194, 10 L. Ed . 2d 215 (19 63). -40- “A swift change of heart is itself stron g indicat ion that the plea was entered

in haste and confusion . . . . By contrast, if the defendant has long delay ed his withdrawal motion, and has had the f ull benef it of competent counsel at all times, the reas on s given to support withdrawal must have considerably more force.” 836 F. 2d at 2 38 (qu otin g United States v. Barker , 514 F.2d 208, 222 (D.C. Cir. 1975)). We cannot conclude that the trial court abused its di scre tion in determining that the defendant had failed to present a “fair and just” re ason for withdrawal of the pleas. Ad di ti on al ly, the defe

ndant ar gues tha t his statemen

ts to law e nforce ment offi cers we

re “so contradictory

that [his] af

firmanc e of them

would be larg ely

useless at trial, especially in light of the testimonyof Edwar

d Allen B eeler. ” Howev er, the a greem ent, which wa s that the d

efenda nt would testify in accord with these statements, did not include a provision that he could dec line to do s o if the statements were, themselves, contradictory or duplicative of the testimony of B eeler. Just as the State cou ld no t r ep ud ia te th is ag re em en t i f i t c on cl ud ed th at th e d ef en da nt ’s te st im on y wa s duplicat ive of other proof

and, thus, unneede d, neithe r could th e defendant. Thus, the rec ord fully

supports t he trial c ourt’s c onclusion that the d efenda nt did not e stablish a “fair and just” reason for withdrawa l of his pleas of guilty. A ccordingly , we conclude that this assignment is without merit.

B. The trial court err ed when it did not

allow the de

fend ant to withdraw his guilty pleas and proce ed to tri al, on the

basis of the State’s failure to disclose Brady mater ial. The defendant argues that he should have been permitted to withdraw his pleas based on an alleged Brady

v. Maryland

4 viola tion, exp laini ng “ [w]hen the State has offered discovery to a defendant that is directly

opposed to the later

discovered evidence, there is a g reater call for

a trial on the merit s.” As disc

ussed in Issu e V, below, because it does not appear that the de fendant has established a Brady

violation, this issue is without merit.5 We have attempted to re produc e th is sta temen t as handwr it ten but be caus e of s pell ing error s, lack of punctuation, and the f

act that cer tain let ters have been marke d over, ar e not cer tain that we have repr oduced the stat ement as intended by it s author, whoever that may have been. 6 The basi s f

or th e def

endant ’s clai m tha t the kni fe w as op en may have come fr om a conversation betwe en defense counsel and the prosecutor. In his mo tion to c ontinu e the he aring o n the m otion for new trial, the statem ent is made th at, accordi ng t o the Stat e, on e of Bro gan’s state men ts was t hat “Mr. Lov eday w as l yi ng on t he gr ound out side his car with an open knife i n his hand and that t he witness gave the knife to law enfo rcem ent whe n they arr ived.” (Em pha sis in origi nal) . Howeve r, t he “s tat ement ” of Brog an, whic h is the basi s f or the cont inu ance r eques t, does not speci fy whether t

he kni fe w as open or cl osed. -41- V. The State failed to make full disclosure pretrial of exculpatory evidence. This issue was precipitated by a handwritten document, the origin of which is not clear from the reco rd, bearing the name Paul James Brog an, 11016 Hoghlan Drive, 671-3842, and wha t appare ntly is his state

ment: Pulled up across street saw boy on ground

called p olice seen him try ing to breeth [sic]. Nife [sic] was in [or “on”] hand & robbers on the g roun d next to him[.] Did not touch anything bot [sic] phone. 5
In his brief, the defendant represents this statement as be ing that Brogan “had seen an open pocketknife in the hand of the deceased.” Howeve r, the written statement does not say whether the knife was open or closed. Whether the writing say s that the knife was “in” or “on” the victim’s hand cannot be determined, by o

ur view, for that w ord can b e read a s either. Thus, although thisclaim is premised upon the victim’s having an open knife in his hand, the statement recites only tha t he had a knife, not specify

ing whether it was open or closed, on or in his hand. 6 At the hearing on the motion for new trial, defense counsel asked that

the h earing be continued, advising the trial court that “sometime ago . . . within the last two weeks” defense c ounsel for Anthony Jones had been provided with the doc ument bearing the name of Paul Brogan. Counsel said they were

provided with a copy of the statement, as well, but had not ye t int e rviewed Mr. Brogan. They knew

Mr. Brogan was “in town,” but the telephone number and address given for him were “evidently not

current.” Counsel argued

that, had they known be

fore the trial, an open or closed knife was in the

victim’s h and, that

“would ha

ve had a lot o f bearing on how we approached the mitigation phase[].” Additionally, the informat ion, acc ording t

o the defendant’s argument, “mig ht have affected

[his] decision to plead guilty” and, at the sentencing hearing, “could have a ffected the jury’s regard for [the defendant] and [caused them to decide] that he need not suffer t he deat h penalty.” In assessing the value of

this statement, we first note other evidence in the record a s to a knife at the crime scene. Two photographs, in the record on appeal, of the Loveda y crime sce

ne show a folding knife, with the blade closed, on the ground by

the driver’s side door. In his August 25, 1997, statemen t, Anthony “T-B one” Jones spoke of the victim’s having “either a g un o r a k ni fe, I d on’t-42-

know what

it wa s. I t was just s ometh

ing gleam ing[. ]” Jones told officers that “before I kn[e]w it, I seen a gleam and

I wa s l ike[] damn , this fool about to kill me over something, . . . and before I knew it, I done grabbed the gun and shot him.” Jones’ statement of August 26, 1997, also told of the “gleam”: “E”. “E” had a gun to the back of dude head. I wa s going

to take my pistol away f

rom him. I seen some thing g leaming in his right hand, I was like, andbefore I looked at [the defendant], I looked at the dude again, it s eemed l ike so methi n’ was just sitt in’ th ere jus t gleam ing, seemed like it was silver

or somethin’, a knife or

gun or s ometh ing, so I just reacted. Counsel for the defendant had filed an extensive motion for exculpatory

evidence, including witness statements. The fact that the “statement” of Paul James Brog an w as not produced to the defense, pursuant to this discovery request, i s the basi s f or this claim. The defense did, however, have earlier noticethat a

“Paul James Brogan” was a witness in the matter. The indictment charging the defenda

nt with the

first deg ree mur der and e specia

lly agg ra vated ro

bbery of Rober

t Scott Loveday was returned by

the Knox County Grand Jury on October 1, 1997, and listed as witnesses ten officers of the Knox County Sheriff ’s Department. However, on Jun e 4, 1998, a n order was entered naming six additional witnesses, four of whom we re not i dentified as government employ ees, one of these being Paul James Brogan. The certificate of service with this order c ertifies that copi es were

sent by United Sta

tes Mail to

counsel f or the defendant

. At the hearing on the motion for new trial, the prosec utor advised the trial court tha t on April 14, 1999, while preparing for the trial of Anthony Jones, he had interview ed Paul James Brogan for the first time and w as told, r

egard ing the s tatement

and its co ntents: He told me at

that time that he did not have a clear recollection of what had happened. That he had a knife in his hand, he thought. That he had made a statemen t, he thoug

ht, to the s heriff’ s depart

ment, and told me at that time he wasn’t sure whether the knife was open or closed. That if it was open that he c losed – but

whateve r was sai d in his statement was what happened. The prosecutor argued that the state ment was contrary

to the defendant’s statement that he had notseen the victim with a knife, that the statement was not exculpatory , and that defense counsel earlier had bee n provide d with a co

py o f Anthony

Jones’ stat

ement th at he had seen a “gleam of something” in the victim’s hand.-43-

Su bs eq ue nt ly, the trial court denied the request of defense c ounsel for a continuance of the hearing on the motion for new trial, noting that defe nse counsel had been advised of the existence of Paul James Brogan when he was adde d to the list of witnesses on June 4, 1998. In Brady v. Maryland , 373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 (196 3), the Un ited States Supreme Court held that the prosecution has a duty to furnish to the defendant exculpatory evidence per taining either to the accused’s g uilt or innocence or to the potential punishment that may be imposed. The Court held that “suppression by the prosecution of evidence favorable to an

accused violates due proc ess wher e the evi dence ismateria

l either t o guilt or to punishment, irrespective of the good faith or bad faith of t he prose cution.” Id. The duty to disclose extends to

all information favorable to the accused whether the evidence is admissible or inadmissible, State v. Spurlock , 874 S.W.2d 602, 609 (Tenn. Crim. App. 1993), and to information “which might

be useful to the defense[.]” Branch v. State , 469 S.W.2d 533, 536 (Tenn. Crim. App. 1969). However, the State’s duty to turn over evidence under Brady does not extend to information that the defense either already possesses or is able to obtain or to information not in the possession or control o f the pro secutio n. Wooden v. St ate , 898 S.W.2d 752, 755 (Tenn. Crim. App. 1994) (citing Banks v. State , 556 S.W.2d 88, 90 (Tenn. Crim. App. 1977)). Further, Brady does not require the State toinvestigate on behalf of the defenda nt. State v. Reynolds , 671 S.W.2d 854, 856 (Tenn. Crim. App. 1984). In order to establish a due process violat ion und er Brady , a defendant must show the follo wing: 1. The defendant must have requested the i nfo rmation (unless the

evidence is obviously exculpatory , i n which case the State is bound to release the information whether requested or not); 2. The State must have suppressed the information; 3. The information must have been favorable to the ac cused; and 4. The inf

ormation m

ust have b een mate

rial. State v. Ed

gin , 902 S.W.2d 387, 389 (Tenn. 1995) (citations omitted). We now will apply these considera tions to this matter. By filin g his motio n for

exc ul patory statements, the de fendant requested that he receive information such as the “sta tement” o f Paul JamesBroga n. Thus, th

is material was sought by the defense. However, theremainder of our review is less helpful for the de fense. Although the State didnot produc e the “st

atement” itse lf, the defendant was informed months before the trial setting that Brogan was a witness. Additionally , photograph s, time ly produced to the de fendant, of the Loveday crime scene showed a knife with the blade closed by the

driver’s side door of the victim’s-44-

car. Thus, while the statement was not provided to the defendant, he was advised of the information it containe d, as well as the ide ntity of its apparent

author. Finally, e

vidence that the victim may ha ve had a knif

e in his hand was presented to the jury through the tape-recorded state ment of A nthon y Jones. Thus, although the “statement” itself may have been suppressed, the fact that a knife was at the scene was not. Alth ough the defendant argues that Brogan’s statement was signif icant because it indicates that the victim

had an op en knife

in his h and, the statement itself makes no reference to the knife being open or closed, and there is no evidence in the record of the knife being open. However, the defendant argue s that ey

ewit nes s information that the victim had a knife, whether open or closed, was favorable exculpatory evidence which would have provided the jury with a “reas on whythe killing took plac e.” I

n so arg uing, the defenda nt attempt s to reduc e his culp ability for th e m urder by showing that the actions of Anthony Jones, for which the defendant is held criminally responsible, were never intended by

Jones or the defendant. Al thou gh conceding that the evidence of a knife in the victim’s hand would n ot hav e provided a

self-de fense theory to the offe

nse of felony mur

der, the defendant argue s that this may have been relevant to the jury as a factor militating against a sentenc e of death. Indeed, Brogan’s statemen t would ha

ve suppor ted that o f codef

endant A nthony Jones that he shot L

oveday because he saw a knife in L

oveday ’s hand a

nd not, as the State argued, because L oveday ha

d no money or to eliminate

him as a witness to the robbery . In the context of a capital sentencing hearing, where the rules of evidence

are relaxed and any

evidence in mitigation is permitted, the defendant contends that Brog an’s statement was a “powerful mitigating factor which might have tipped the scal es i n favor of life” for the defendant. On the other ha nd, on the basis of the evidence presented, the jury could have concluded that the defendant himself killed L oveday we

re it not for the fac t that the St

ate stipulated otherwise at

the submission hearing. Thus, we conclude that the benefit to the defendant had this sta

tement be en timely

produce d would ha

ve been minimal at b est. With respect to the fourth prerequisite, o ur supreme court has adopted the standard of materia lity announced in Kyles v. Whitley, 514 U.S. 419, 433, 115 S. Ct. 1555, 1565, 131 L. Ed. 2d 490, 505 (1995 ): there

is constitu

tional er ror if the re is a “ reasona ble proba bil ity that, had t

he evidence been disclosed to the [defendant earlier], the result of the proceeding would have been different.’” Edgin , 902 S.W.2d at 391. The Edgin court fu rther sta ted: [The] “touchs tone o f materiality is a ‘r easonable probability ’ of a diff erent result, and the adjective is important. The question is not whet her the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair tr ial, unde rstood asa

trial resulting in a verdict worthy of c onfidenc e. A ‘re asonable probabil ity’ of a diff

erent r esult i s accord ingly shown when the Government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’”-45-

Id. at 390 (quot ing Kyles , 514 U.S. at 434, 11 5 S. Ct. at 1566, 131 L. Ed. 2d at 506 (additional citation omitted)). In other words, in order to prove a Brady violation, a defendant must show that “the favorable evidence could rea sonably be taken to put the whole case in such a different lig ht as to undermine confidence in the verdict.” Kyles , 514 U.S. at 435, 115 S. Ct. at 1566, 131 L. Ed. 2d at 506. In this matte

r, the St ate sought th

e death p enalty

based on two agg ravatin g circumstance s. The jury re

jected the State’s attempt to establish that the victim

was kille d in an ef

fort to av oid arre st or prosecu tion of the

defenda nt or the o ther par

ticip ants t o the crime and relied only upon the defe ndant’s prev ious convi ction for a violent felony in sentencing him

to death. In re aching

this decision, the jury had hea

rd Anthony Jones’ statement that he shot Loveday after s eeing s ometh ing, possibly a knife, gleami ng in Loveday ’s hand. In addition, the defenda nt testified that he did not have time to reac t before

Jones took hi s gun an d shot the victim and that he could not have prevented the murder because he did not know it was going to happen. All of this t estimony , as well a s crime scene photographs showing a knife near the victim’s c ar, tend

ed to suppo

rt the defendant ’s effo

rts to establish that neither the shooter, Anthony Jones, nor anyone else in the g roup, including the defenda nt, intended to harm anyone . Rather, the victim was shot as the result of a robbery gone awry when Jones reactedto something in the vic tim’s hand . The jury ’s verdi ct, however, in which it did notfind that the victim wa s killed asan effo rt to avoid

leaving a witnessto the cr

ime, appa rently took the defense’s evidence into consideration. We ca nnotconclude that ther

e is a re asonable probabil ity that the sentence would have been different if additional evidence that the victim had a pocketknife in his hand had been presented. In fa ct, beca use of the crime sc ene photo graph s, the jury had ev idence as to a knife near the victim before it and determined that the death sentenc e wa s supported only by

the fact of the defendant’s prior violent felony conviction. As previously noted, this aggravating

circumstance may

be more persuasive and reliable than others. Statev. Howell , 868 S.W.2d 238, 261 (Tenn. 1993). Thus, we c onclude t

hat the de fendant has failed to establish that the requested information was suppressed or that it was material to his case. No due process right to a fair trial was violated. VI. The trial court erred in denying the defendant’s motion to continue t he sentenci ng hearin g in order that defendant’s expert could evaluate medical test data not made available until the first day of the hearing. On the morning of the first day of the s enten cing he aring, the defense received the re sults of medical tests administered to the defendant. The trial court deni ed the defe nse request for a continuance of one or two day s in order to allow Dr. Schacht to review the data; and, the defendant as se rt s h e w as ha nd ic ap pe d i n e ff ec ti ve ly p re se nt in g D r. Sc ha ch t’ s e xp er t t es ti mo ny. The S tate responds that this assignment is without merit because both the results of the proceeding would not h ave bee n differ ent if the continuance had been gra nted and the defendant

had an opportunity to provide the test data to Dr . Schacht before he testified but failed to do so.-46-

We note fir st

that it is in the sound discretion of the trial cou rt to dec ide wheth

er to gr ant a continuance, and the trial court’s decision will not be disturbed absent a clear showing of abuse of discretion. State v. Hurley , 876 S.W.2d 5 7, 65 (Te nn. 1993) ; State v. Gregory , 946 S.W.2d 829, 831 (Tenn. Crim. App. 1997) . This court has further elaborated:

[The tria l cou rt’s ] e xerci se of that discretion will not be disturbed ab sen ta clear showing of prejudice to the de fendant. The burden rests upon the p arty

seeking the continuance to show how the court’s action was prejudicial. Th e only test is whether the de fendant has been deprivedof his rights and an injustice done. A reversal will be ordered only if the reviewing court is convinced that the complaining party did not have a fair t rial and a different result would or might reasona bly have been reached had there been a different disposition of the motion. Stat e v. Goodman , 643 S .W.2 d 375, 378 (T enn. C rim. A pp. 19 82) (ci ting Baxter v. State , 503 S.W.2d 226, 228 (Tenn. Crim. App. 1973)). The record reflects that Dr. Schacht testified e xtensively based on his personal observa tions of the defendant, information and reports he was provide d by others, and testing administered to the defendant in prepa ration fo r the sen tencing hearing . His testim

ony as to cer tainneurolog

ical test s, upon which the defendant bases his claim that a continuance should have be en granted, was as follows: Q What were the results of those

tests? A [T]he results as far

as I u ndersta nd them we

re norma l. Q What tests were given? A I have not seen the report. There were neuroimaging studies. I think there was an MRI. I

have not seen the written reports so I c an’t go bey ond that. I think we’ve been g

iven a verbal report. Alth ough the defendant argues that his examination of Dr. Schac ht was “handicapped,” the record does not establish that the result of the proceeding would have bee n different or that the defendant would ha ve bene fitted had Dr. Schacht had been permitted more time to review the medical data. The transc ript of the

hearing on the motio n refle cts that the stated reason for requesting the continuance was that Dr. Schacht was testify ing in another trial at

the beginning of the week of the defen dant ’s trial as to punishment. As it happened, Dr. Schacht testified at the defendant’s trial, as the defense’s eighth witness. The State’s sug gestion that the defense could have-47-

provided the test da

ta to Dr. Schacht when it was received on Monday morning so that he could have spent time reviewing it prior to testify ing is supported by the r

ecord. The defenda

nt has not d

emonstra te d t hat any pre

judice resulted from the denial of the requested continuance. Accordingly , we conclude that the trial court did not err in procee ding with the matter as scheduled. VII. The trial court err ed in failing to

grant the defendant’s challenge to the constitutionality of capital punishment. A. Dea th imposed b y elect rocution, or by any m

eans, is cr

uel and unusua l punishment

in violation

of the Eig ht h and Fourt eenth Am

endment s to the United Stat

es Co nstit

ution and Ar ticl e I, Se

ctio n 16 of t

he Tennessee Constitution

. The defenda

nt’s arg ument tha

t th e death pen alty by

any means, but in par

ticular by electrocution, constit

utes cru el and unusual punishment in violation of the state and federal constitutions has been repeatedly rejected by

our appellate courts. See Statev. Keen , 31 S.W.3d 196, 233 (Tenn. 2000), cert. d en ied , 532 U.S. 9 07, 121 S. Ct. 1233, 149 L . Ed. 2d 142 (2001); State v. Pike , 978 S.W.2d 904, 925 (Tenn. 1998), cert. denied , 526 U.S. 1147, 119 S. Ct. 2025, 143 L. Ed. 2d 1036 (199 9); State v. Nesbit , 978 S.W.2d 872, 902-03 (Tenn. 1998), cert. denied , 526 U.S. 1052, 119 S. Ct. 135 9, 143 L . Ed. 2d 520 (1999); State v. Vann , 976 S.W.2d 93, 118 (Tenn. 1998), cert. denied , 526 U.S. 10 71, 119 S. Ct. 1467, 143 L . Ed. 2d 551 (1999); State v. Blanton , 975 S.W.2d 269, 286 (Tenn. 1998), cert. denied , 525 U.S. 1180, 119 S. Ct. 1118, 143 L. Ed. 2d 113 ( 1999); State v. Cribbs , 967 S.W.2d 773, 796 (Tenn.), cert. denied , 525 U.S. 932, 119 S. Ct. 343, 142 L. Ed. 2d 283 (1998); State v. Cauthern , 967 S.W.2d 726, 751 (Tenn.), cert. denied , 525 U.S. 967, 119 S. Ct. 414, 142 L. Ed. 2d 336 (1998). The defendant’s argument focuse s on the “torturous” nature of electrocution. Under the law as amended , howeve

r, the defendant

is subjec t to death

by lethal injection, unless he elects instead to be electrocuted. Tenn. Code Ann. § 40-23-114(a), (c) (Supp. 2000). Accordingly , the “issue of whether electrocution is cruel and unusual punishment is no longer properly before the Court.” State v. Morris , 24 S.W.3d 788, 797 (Tenn. 2000), cert. denied , 531 U.S. 1082, 121 S. Ct . 78 6, 1 48 L. Ed. 2d 682 (2001). With respect to death by lethal injection, the defendant adds that it is only a n assumption

that dea th by lethal inj ection is nontortur ous. This assig

nment is without meri

t. B. Tennessee Code Annotat ed se ction 39- 13-204 does not sufficiently narrow the po pulat

ion of d efendant s convicted of first degree murder who are elig

ible for a se

ntence of death in viol ation of the Eighth and Fourteenth Amendm

ent s t o the Unit

ed States Constitut

ion and Arti cle I, Sectio ns 8 and 16 of the Tennessee

Constitut

ion.-48-

The defendant argues that the sentenc ing scheme in this state fails to “provide a meaningful basis for distin guishing

the few c ases in wh

ich the de ath pena

lty i s imposed f

rom the ma

ny c ases in which it is not.” State v. Pr itchett , 621 S.W.2d 127, 138 (Tenn. 1981). In particula r, the defendant asserts that the statutory ag gravating circumstance s set forth in section 39-13-2 04(i) fa il to suf ficientl y limit the jury’s discretion or provide a “meaningful basis” for narrowing the class of de fe nd an ts el ig ib le to re ce iv e t he de at h p en al ty. The State res ponds, and we agree, that only the section 39-13-204(i)(2) agg ravator (prior felony convicti on involvin g the use of violence) was applied

in the def endant’ s case a

nd that the

use of this aggravator has bee

n repeatedly

upheld. See State v. Caldwell , 671 S.W.2d 459, 465 (Tenn.), cert. denied , 469 U.S. 873, 105 S. Ct. 231, 83 L. Ed. 2d 160 (1984). This assig

nment is without meri

t. C. Tennessee Code Annot ated sec tion 39-13 -204 does

not sufficient

ly limit the exerci se of the j ury’s disc retion because once the jur y finds aggravat ion, it can im

pose a death sentence no matter what mitigation is shown, in violation of the Eigh th and Fourteenth Amendments to the United States C onstitutio n a nd Arti cle I, Sec tions 8 and 16

of the Tennessee

Constitut

ion. The State responds that this argument has previously bee

n rejected. See State v. Smith , 857 S.W.2d 1, 21-22 (Tenn.), cert. denied , 510 U.S. 996, 114 S. Ct. 561, 126 L. Ed. 2d 461 (1993); State v. Hurley , 876 S.W.2d 57, 68-69 (Tenn. 1993), cert. denied , 51 3 U. S. 933 , 11 5 S . C t. 328 , 13 0 L. Ed. 2d 287 (1994). Moreover, a re ading of section 39-13-204(f)(2) r eveals that the jury

is by law required to impose a sentence other than death if it finds that the proven statutory aggravating circumst ances do not outwe

igh any mitigati ng circ

umstance (s) bey

ond a rea sonable d

oubt. This assig

nment is without meri

t. D. Tennessee Code Annotated section 39-13-204 mandat orilyrequires

the jury to impos e the dea

th penalty i

f it finds t heaggravating circumstances outweigh the mitigating circumstances, in violation of th e Eighth and Fourteenth Amendments to the United States Constitution and Art icl e I, Sectio ns 8 and 16 of the Tennessee

Constitut

ion. The defenda

nt asser ts that the

capital s entencing sche

me and se ction 39- 13-204(g ), in particular, preclu de the jury from ultima

tely determin

ing whe ther dea th is the ap

propria te punishmentin a particular case becau se it mandates that the death sentence be imposed if the aggravating circumstances outweigh any mitigating circumstances bey ond a reasonable doubt.-49-

The State cou

nters tha t this arg ument hasbeen re

peatedl y r eje cted a nd is withou

t merit. Sp ec if ic al ly, our supreme court has repeatedly

held that “‘the statute, taken in its entirety , does not in any way

unconstitutionally deprive the sentenc er of the discretion mandated by the individualized sentence requirements of the Constitution.’” State v. Bane , 853 S. W.2d 483, 488 (Tenn. 1993) (quoting St at e v . B oyd , 797 S.W.2d 589, 596 (Tenn. 1990), cert. denied , 498 U.S. 1074, 111 S. Ct. 800, 112 L. Ed. 2d 861 (1991)). This assig

nment is without meri

t. E. Tennessee Code Annot ated sec tion 39-13 -204 does not inform t he jury in specific term s of its abilit

y to impo se a life sentence out of mer cy, in violation of the Eighth a

nd Fourte

enth Am endment

s to the U nit ed S tates Constitution and Artic

le I, Sect ions 8 and 16 of t

he Tennesse

e Constit ution. Th e defendant

argues that the failure to specifica lly instruct the jury

that they could have chosen to sentence him to life out of pure mercy present s a “serious constitutional infirmity” in our statute. Our appella te court s have co nsistently rejected the arg

ument tha t the “mer cy instructi on” is required at a capital sentencing hearing

. See Cauthern , 967 S.W.2d a t 749; Stat e v. B igbee , 885 S.W.2d 797, 813- 14 (Tenn . 1994); State v. Cazes , 875 S.W.2d 253, 2 69 n.6 (Tenn. 1994), cert. denied , 513 U.S. 1086, 115 S. Ct. 743, 130 L. Ed. 2d 644 (1995). This assig

nment is without meri

t. F. Tennessee Code Annotated section 39-13-204 prohibits the jury from bei ng informed of theconsequences of its failure to reac h a unanimous

verdict in the penalty phase, in violation of the Fifth, Sixth, Eighth, an d Fourteenth Amendmentsto the United States Constitution and Article 1, Sections 8, 9, 10, and 16 of t

he Tennesse

e Constit ution. Th e defendant argues that the statute allows a jur y to labor under the

mistaken impression that their failure t o reach a unani mous decision in the penalty phase will result in a retrial of the entire case. He cites two Louisiana case s in support of his argument that it is reversible error not to inform a ca

pital jury that their inability to reach a unanimous verdict of death results in the mandatory

imposition of a life sentence. Statev. Loyd , 459 So. 2d 4 98, 500-0 2 (La . 1984); State v. Williams , 392 So. 2d 619, 634-35 (La. 1980). Section 39-13-204(h) provides, in pertinent part, that “[t]he ju dg e s ha ll no t i ns tr uc t t he ju ry, nor shall th e attorney s be perm itted to co mment at a

ny t ime to the j ury , on the ef

fect of the ju ry’ s failure to agree on a punishment.” While acknowledging this statute, the defendant contends that notexplaining the effect of a hung jury to a jury is an illogical and unconstitutional practice. The Statecorrectly

observes that our supreme court has repe atedly

rejected this argument. See Cribbs ,-50-

967 S.W.2d at 79 6 (appendix); State v. H all , 958 S.W.2d 679, 718 (Tenn. 1997), cert. denied, 524 U.S. 941, 118 S. Ct. 2348, 141 L. Ed . 2d 718 (1 998); State v. Brimmer , 876 S.W.2d 75, 87 (Tenn.), cert. denied , 513 U.S. 1020, 115 S. Ct. 585, 130 L. Ed. 2d 499 (1994). This assignment is without merit.

PROP ORTIONALITY

REVIEW I. The evidence

presente d in its entir

ety and as c

ont ained in the record was insufficient a

s a matt er of law to s upport a sentence of death. The defendant argue s t hat the death sentence in his case is disproportionate when a comparison of the penalties received by other def

endants in similar cases is undertaken as mandated by Tennessee Code Annotated section 39- 13-206. That section provides that this court shall consider whether the “sentence of death is ex cessi ve or disproportionate to the penalty imposed in similar cases , considering both the nature of the crime and the defendant.” Tenn. Code Ann. § 3 9-13

- 206(c)(1)(D). In conducting a comparative proportionality review, we begin with the presumption that the sentence of

death is proportional with the crime of first degree murder. State v. H all , 958 S.W.2d 679, 699 (Tenn. 1997), cert. denied , 524 U.S. 941 , 11 8 S . C t. 234 8, 1 41 L. Ed. 2d 7 18 ( 199 8). In choosing and comparing cases, many variables are considered. State v. H all , 976 S.W.2d 121, 135 (Tenn. 1998) (citing State v. Bland , 958 S.W.2d 651, 667 (Tenn. 1997)), cert. denied , 526 U.S. 1089, 119 S. Ct. 1501, 143 L. Ed. 2d 654 (1999). Among these variables are: (1) the means of dea th; (2) the manner of death (e.g., violent, torturous, etc.) ; (3) the motivation for the killing; (4) the place of death; (5) the similarity

of the victims’ circumst

ances including

age, phys ical and

mental co nditions, and the victim s’ treatment during the killing; (6) the absence or presence of

premeditation; (7) the absence or presence of pr ovocation; (8) the absence or presenc e of justification; and (9) the injury to and effects on non-decedent victims. Id. (citing Bland , 958 S.W.2d at 66 7; Hall , 958 S.W.2d at 699). Ch arac teristics relevant to a comparison of defendants include: (1) the defendant’s prior criminal record

or prior criminal activity ; (2) the d

efenda nt’s ag e, race , and ge

nder; ( 3) th e defendant’s mental, emotional or physical condition; (4) the de fendant’s involvement

or role in the murder; (5) the defendant’s cooperation with authorities; (6) the de fendant’s remorse; (7) the defendant’s knowledge of helplessness of victim(s); and (8) the defendant’s capacity for rehabilitation. Bland , 958 S.W.2d at 667. Focusing on the fact that he was not the shoo te r, the defendant argue s that the e

vidence in this c ase does not support the imposition of death under the rationales announced by the United States Supreme Court

in Tison v. Arizona , 481 U.S. 137, 157-58, 107 S. Ct. 1676, 1688, 95 L. Ed. 2d 127 (1987), and

Enmund v. Florida , 458 U.S. 7 82, 797, 10 2 S. Ct. 3368, 3377, 73 L. Ed. 2d 1140 (1982) . In Enmund , the defendant was convicted of felony murde

r for his role as the driver of the-51-

getaway car in a robbery /murder of two persons in their home. In r eversing thejudgment sentencing the defendant to death, the Supreme Court stated:

For purposes of imposing the death penalty, Enmund’ s criminal culpability

must be limit

ed to his pa

rticipat ion in the r

obbery , and his punishmentmust be tailored to his personal responsibility and mora l guilt. Putting Enmund to death to avenge two killings that he did not commit and had n o intention

of commi tting orcausing does not measura bly contribute to the retributive en d of ensuring that the criminal gets his just deserts. . . . . Becau se the Florida Supreme Court affirme d the dea

th penalt y in this case in the absence of proof that Enmund killed or attempted to kill, and regardless of whether Enmund intended or

contemplatedthat life would be taken, we re verse t he judg ment uphol ding the death penalty and remand for

further procee dings no t inconsist ent with th

is opinion. Enmund , 458 U.S. at 801, 102 S. Ct. at 3378-79, 73 L. Ed. 2d at 1154. Five years a

fter Enmund , the Supreme Court furth er analy zed and refined the standard for imposing the death penalty upon a non-killing accomplice in Tison v. Arizona . In that case, the petitioners assisted their brother i n breaki ng their father and anoth

er convi ct out of a

state pe ni te nt ia ry. The petitioners received death sentence s for felony murde r after the occupants of a passing vehicle were kidnapped and eventually killed by the petitioners’ fa ther and his fellow escapee. The Tison Court observed:

The petitioners’ own personal involvement in the crimes was not minor, but rather, as specifically fou nd by t

he trial c ourt, “substantial.” Far from merely sitting in a car away

from the actual scene of the murders acting as the ge taway drive

r to a robbery, e ach petition erwas actively involved in e very ele ment of the ki dnapping-robbery

and was physica

lly present during

the entire sequence of

criminal activity culminating in the mur der of the Lyons family and the su

bsequen t flight. 481 U.S. at 158, 107 S. Ct. at 1688, 95 L. Ed. 2d at 144. The Court held that “major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund

culpability requireme

nt.” Id. (f

ootnote o mitted). Our supreme court looked to the decisi ons in bot h Tison and Enmund in rejecting the claim of the non-shooter/defe ndant that the death penalty in his case w as disproportionate in State v. Taylor , 774 S.W.2d 163, 167 (Tenn.), cert. denied , 493 U.S. 9 45, 110 S. Ct. 355, 107 L . Ed. 2d 342 (1989). T

he court observe d:-52- Contrary to defendant’s contention, the Eighth Amendment to the United States Constitution does not bar the death penalty for an aider and abettor where the proof sho ws that tha t person i ntended t

hat a killing take place or was a major participant in the underly ing felony and had a mental stat e of reckless indifference to human life. See Tison v. Ar

izo na , 481 U .S. 137, 107 S. Ct. 1676, 95 L. Ed. 2d 127 (1987); Enmund v. Florida , 458 U.S. 7 82, 102 S. Ct. 3368, 73 L. Ed. 2d 1140 (1982). Defendant’s actions before , during and immed

iately after the murder cast him in the role of a major p artici pant with an affirmative intention to terminate a human life. Id. at 166-67. The State submits that the facts of this cas e show that this defendant was also a major participant in the felony murder and exhibit

ed a rec kless disr egard for the victim’s lif

e. The Sta

te notes that it was the defenda nt who fir st pointed

out Lo veday

as a potential victim and instructed the driver of the car to turn around and approach him; that the defendant and another person exited the vehicle, armed with weapons; that the defendant pointed his gun at the victim and demanded that the victim tur

n over hismoney ; that it

was the gun taken from the defenda nt’s hand that

was used by another to shoot the victim; that the defen dant did not attempt to assist the victim after he was shotalthough the shooting took place next to a pay phone; and that the

defenda nt assiste d two of his accompl ices, inclu ding t he sho oter, in fle eing p olice as the ir car was pursued on the night of the murder. As similar cases supporting a conclusion that the death sentence

is not disproportionate, the Statecites the

following : State v. H arris , 919 S.W.2d 323, 331-32 (Tenn. 1996 ) (defe ndant wa s with other men who shot and killed victim) (On direct appeal, this court modified judgmen t to life imprisonme

nt; Tennessee Supreme Court reversed and r emanded for “a res entencing hearing in which the State will be free to again seek the death penalty .”) ; Taylor , 774 S.W.2d at 165 (Defendant was non-shooter, but provided murder weapon to shooter

shortly before the killing .); Statev. Dicks , 615 S.W.2d 126 (Tenn.), cert. denied , 454 U.S. 933, 102 S. Ct. 431, 70 L. Ed. 2d 240 (1981) (Coconspirator

appare ntly killed victim in robbery-turne d-murder case; both he and defendant r eceived death sentenc es in sepa

rate tr i als.); see also State v. McKay , 680 S.W.2d 447 (Tenn. 1984) (Twenty -five-y ear-ol d defendants, in separate trials, were c onvicted of felony murder

and sentenced to death for shooting two store clerks to death during course of a r obbery; evidenc e did not absolutely establish identity of the shooter; jury imposed dea th sentence in each case.). Based upon our review of similar cases, we respect fully dis agree with the defendant’s argume nt that the evidenc e in this ma

tter doe s not suppor

t imposition

of capit al punishm

ent.-53- CONCLUSION Based upon t he fore going au thori ties a nd reas onin g, we affirm the judgments of conviction and the im

position of

capital p unishment

.

______________________________ ALAN E. GL

ENN, JUDGE