# FILED
May 30, 1997 Cecil W. Crowson Appellate Cou rt Clerk IN THE COURT OF CRIMI NAL APPEALS OF TENNESSEE

AT NASHVILLE MAY 1996 SESSION

GREGORY THOMPSON, * C.C.A. # 01C01-9506-CC-00180 Appellant, * COFFEE COU NTY VS. * Hon. Will iam S. Russell, Ju dge STATE OF TENNESSEE, * (Post-Co nviction, Death Pen alty) Appellee. *
For Appellant: For Appellee: Robert J. Warner Charles W. Burson Boult, Cummings, Conners, & Berry Attorney General & Repor ter 414 Union Street, Ste. 1600 P.O. Box 198062 Kimberly A. Chance Nashville, TN 37219 Assistant Attorney Gener al 450 James Robertson Parkwa y Joseph E. Ford Nashville, TN 37243-0493 McBee & Ford 17 S. College Street C. Michael Layne Winchester, TN 37398 District Attorney General 307 S. Woodland P.O. Box 147 Manchester, TN 37355 Stephen Weitzman Asst. District Attor

ney General 307 S. Woodland P.O. Box 147 Manchester, TN 37355

OPINION FILED:_____________________

AFFIRMED

GARY R. WADE, JUDGE2 OPINION The petitioner, Gregory Thompson, appeals the trial cour t's denial of post-conviction relief. The petitioner was convicted of first degree murder. Th e jury sentenced the petitioner to death based upo n three aggravating circumstances: (1) that the murder was heinous, atrocious or cruel in that it involved tor ture or depravity of mind; (2) that the murder w as committed to avoid prosecution; and (3) that the murder was committed wh ile the defendant was committing a robbery or kidnapping

. Tenn. Code Ann. § 39-2-203(i)(5), (6), and (7) (repealed 1989). Our suprem e court affirmed the conviction and sentenc e on February 27, 1989. State v. Thompson , 768 S.W.2d 239 (Tenn. 1989). In 1990, the petitioner fil ed this petition for postconviction relief. At the conclusion of an evidentiar y hearing several

years later, the trial cour t denied the claim.
In this appeal of right, the pe titioner presents the follow ing issues for our review: (1) whether the post-conviction court err ed by finding that the petitioner receiv ed the effective assistance of counsel; (2) whether the post-conviction court err ed by denying funding for a psychologis t or psychiatrist and an investigator; (3) whether the post-conviction court err ed by refusing to set aside the order desig nating Judge William Russell to hear this case and in refusing to reinstate Judge Buddy D. Perry; (4) whether erroneous jury instructions

defining deliberation and premeditation require reversal; (5) whether the jury instructions on the "heinous, atrocious or cruel" aggravating circumstance were unconstitutionally v

ague; (6) whether the petitioner's confession was unlawfully obtained and illegally

admitted at his trial; (7) whether the failure of the trial court to instruct the jury3 on the effect of non-unanimity and the optio n to recommend life imprisonment violated the petition er's rights under the Eighth and Fourteenth Amendments; (8) wh ether th e trial

court' s allow

ing Dr . Watson to t

estify and introduce psychiatric/psycho logical reports th rough his testimony was an unconstitutional denial of petitioner's rights; (9) whether the petiti oner was denied his constitutional right to a t rial by jury b y the exclus ion of two prospect ive jurors; and (10) whether the petitioner's constitutional rights were violated by implicit referen ces to his failure to testif y.

We find no merit in the first four issues. We conclude that iss ues five, six, seven, and eight were previously determined by our supreme court on direct appeal and that issues nine and ten are waived. Accor dingly, we affirm the judgment of the trial court.

A brief review of the conv icting evidence is

helpful. On January 1, 1985, the petitioner and J oanne McNamar a, a juveni le, kidnappe

d the victi m, Brenda Lane, in a Wal-Mart parking l ot in Shelbyville,Tennessee. He forced the victim to drive th em to an isolated area outside M anchester, Tennessee, where, he stabbed her four times in the back and then abandoned her. After his arr est, the petitioner confessed to the crime and assisted aut horities in locating the body. His confession was introduced as evidence during the tr

ial.
At the penalty phase of the trial, several witnesses testified on behalf of the petitioner. He was described as a well- behaved, good student prior to leaving home in 1 979. The d efendant's girlfriend, Arlene Cajula o, testified about his life after he left home, when he was in the military service and stationed in Hawaii. Dr. George Copple, a clinic al psychologist, tes

tified about the general abili ties of the4 petitioner and what kinds of work he could perform during his imprisonment. Dr. Robert Watson testified that the petitioner ex hibited anti-social adult behavior, was not remorseful, and malingered ment al illness. A more complet e account of the evidence appears in Thompson , 768 S.W.2d at 243.

I The petitioner first argues that his two trial attorneys performed their duties ineffectively. In this appeal, the state contends tha t this ground for relief is barred as having been previously determined. During the course of the evidentiary hearing, however, the petitioner was all owed to introduce proof that hi s trial counsel was ineffective; at that ti me, the state did not assert the d efense of previous determination, Tenn. Code Ann. § 40-30- 112 (repealed 1995), and made no objections to the admission of the testimony.

In the direct appeal from the conv iction and sentence, the petiti oner made two separate claims r egarding his trial

counsel: Issue I: The constitutional r ights of the defendant, pursuant to Article I, Sec tions 8 and 9 of the Declaration of Rights, Tennessee Constituti on, and under the Fifth, Sixth, and Fourteenth Amendments of the United States Constitution were denie d defendant by virtue of the appointments of attorneys John W . Rollins and H. Thomas Parsons, when they w ere disqualified to act as counsel due to their respect ive representations of Coffee County and Sheriff Bobby McC ullough, sheriff of Coffee County. Issue II: The rights of the defendant, Gregory Thompson, to competent counsel pursuant t o Article I, Sections 8 and 9 of the Declarati on of Rights of the Tennessee Constitution and under the Fifth, Sixth, and Fourteenth Amendments to the United St ates Constitution were denie d him by the failure of the court to appoint counsel experienced in both criminal liti gation and death litigation, neither Doyle E. Richardson nor H. Thomas Parsons having ev er participated in a death penalty case.5 In resolving the first claim, our supreme court ruled as follows: Plainly, an accused is

entitled to zealous representation by an attor ney unfettered by a conflicti ng interest. To establish a deni al of the sixth amendment right to counsel, it i s sufficient to show that an actual conflict existed. If an attor ney actively r

epresents conflicting interests, no analysis of prejudice is necessary; it is pr

esumed that his divided int erests adversely affected his rep resentation. But as counsel conceded, the conflict claimed her e was only a potential one and quite remote; and it w as resolved before trial

. Without a showing of prejudice--and an attorney's good faith assertion of his disqualification is not in itself ineffective representation--there is no denial of cou nsel. Thompson , 768 S.W.2d at 245 (citation s omitted).

As to the second issue, our supreme court ruled as follows: Neither is any preju dice apparent in this recor d from counsel's lack of experi ence in capital cases or fro m cocounsel Rollins' non-par ticipation or from inadequate compensation to Defendant's court-appointed attorneys. While it is understandable that counsel would secondguess their decisions in a case such as this, these and related questions are more appropriately raised

by other counsel when the present attorneys are relieved of their advocacy role. Thompson , 768 S.W.2d at 245 (footnote omitted) (emphasis added).

The state argues that our supr eme court has already deter mined the petitioner received the effective assistance of counse l. "A ground for relief is 'previously deter

mined' if a court of competent juris diction has ruled on the merits after a full and fair hearing." Tenn. Code Ann. § 40-30-112(a)(1) (repealed 1995). Ineffective assistance of counsel is generally "'a s ingle ground for reli ef'" under the post-conviction statute

. Cone v. State , 927 S.W.2d 579, 581-82 (Tenn. Crim. App. 1995), app. denied , (Tenn. 1996), cert. denied , _____ U.S. _____, 117 S.Ct. 309 (1996). "'[T]he fact that such v iolation may be proved b y multiple acts or omis

sions6 does not change the fact that there r emains only one ground for r elief.'" Frank McCray v. State , No. 01C01-9108-CR-00255, slip op. at 10 (Tenn. Crim. A pp., at Nashville, Sept. 1 1, 1992) (quotin g William Edward Blake v. State , No. 1326, slip op. at 3 (Tenn. Crim. App., at Knox ville, March 19, 1991) ). A petitioner may not relitigate previ ously determined grounds for relief by presenting additional factual allegations. Cone , 927 S.W.2d at 581-82.

Here, our supreme court cl early ruled on the first issue, holding that a conflict of interest did not depr ive the petitioner of the effectiv e assistance of counsel. Thompson , 768 S.W.2d at 245. While observing that the conflict i ssue was "thoroughly l itigated in the trial court," our supreme court pr etermitted consideration of the additional fact ual allegations in suppor t of the claim of ineffective assistance. Id. The court ruled that "these and related questions are more appropriately rai sed by other counsel w hen the present attorneys ar e relieved of their advocacy role ." Id.

It is true that ineffective as sistance is a single ground for relief and a petitioner may not relitigate the issue by pr esenting new and different factual allegatio ns in a subse

quent proceeding. In t his instanc e, however, our supreme court has deliberately

abstained from ruling on w hether some of the factual allegations entitle the petitioner to relief. Thus, those ad ditional allegations should not be considered as previously determined. Except for the allegation that his counsel was ineffective for laboring under a direct conflict of inte rest, we must conclude that the issue has not been previously deter mined.
Nevertheless, raising the issue of ineffective assistance on direct appeal is a "practice fraught with peril." State v. Jimmy L. Sluder , No. 1236, slip op.7 at 16 (Tenn. Crim. App., at Knox ville, Mar. 14, 1990) . In Sluder , our court, in order "to prevent the appellant from bei ng prejudiced due to counsel 's ill-advised att empt to raise this issue, [hel d] that the appellant may rai se this issue in a proceedi ng brought pursuant to the Post-Conviction Procedure A ct." Id. (footnote omitted). An appellant runs the risk of hav ing the issue resolv

ed "without an evidentiar y hearing which, if held, might be the only way that ha rm could be shown--a pr erequisite for relief in ineffective trial

counsel claims." Jimmy Wayne Wilson v. State , No. 909, slip op. at 10 (Tenn. Crim. App., at Knoxville, May 29, 1991). The supreme court's recognition of these risk s may have been the basis for their refusal to consider the full issue.
The petitioner argues that hi s trial counsel was ineffective for the following reasons:

(a) by failing to obj ect to hearsay testimony at the hearing on the motion to suppre ss the confession; (b) by failing to i nterview witn esses who could have bee n beneficial to the petitioner's case, especially at the penalty phase; (c) by failing to a

dequately investigate prior head injuries to the petitioner;(d) by failing to adequately prepare for crossexamination of the state's w itnesses; (e) by failing to pr

epare and present defense witnes ses; (f) by "opening the door" t o damaging evidence duri ng the penalty phase of the trial; (g) by waiv

ing during the penalty

phase the right to confront the state's expert w itness when a deposition was used in substitution of the appearance of a witness; (h) by failing to q uestion the assistant distr ict attorney at the motion for new trial about possible racist remarks, which would have been useful in establishing a Batson violation; and (i) by failing to object to comments by the state upon his8 failure to testif y.
When a petitioner seeks post-convicti on relief on the basis of ineffective assistance of counsel , he must first establish that the services rendered or the advise given was below "the range of competence demanded of atto rneys in criminal cases." Baxter v. Rose , 523 S.W.2d 930, 936 (Tenn. 1975). Second, he must show that the deficienci es "actually had an adver se effect on the defense." Strickland v. Washington , 466 U.S. 668, 693 (1984). Shoul d the petitioner fail to establish either factor, he is not entitled to relief. Recently, our suprem e court described the standard of review as follows:

Because a peti tioner must est ablish both pro ngs of the test, a failure to prove either deficiency or prejudice provides a s ufficient basis to deny reli ef on the ineffective assistance clai m. Indeed, a court need not address the components in any particular order or ev en address both if the defendant makes an insuffici ent showing of one component. Goad v. State , 938 S.W.2d 363, 37 0 (Tenn. 1996).

Moreover, in claims of ineffective counsel, the petiti oner is not entitled to the be nefit of hindsight , may not s econd-gu ess a reas onably ba sed trial strategy, and cannot criticize a sound, but unsuccessful, tactica l decision made during the course of the proceedings. Adkins v. State , 911 S.W.2d 334, 347 (Tenn. Crim. App. 1994); See State v. Martin , 627 S.W.2d 139, 142-43 (Tenn. Crim. App. 1981). Such deference to tactical decis ions of counsel applies only if the choices are made after adequate preparation for the c ase. Cooper v. State , 847 S.W.2d 521, 528 (Tenn. Crim. App. 1992).

Finally, on appeal, the findings of fact made by the trial court are conclusive and will not be disturbed unless the evidence contained in the record9 preponderates against them. Brooks v. State , 756 S.W.2d 288, 289 (Tenn. Crim. App. 1988). The burden is on the petitioner to show that the e vidence preponderates against those find ings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978).
(a)

The petitioner argues counsel was ineffective for failing to object to hearsay testimony at the hearing on the motion to suppress the petition er's confession. On direct appeal, our supreme court summariz ed the facts surrounding the defendant's confession:

Thompson was arrested on Januar y 2 in Marietta, Georgia, and transported to the local police department. He was advised of his rights, and made an initial admission to an agent of the Tennessee Bu reau of Investigation that he had been in Shelbyville and bought the vehicle found on fire. It is undisputed that Defendant then invoked his right to counsel and all

questioning ceased. T.B.I . Officer Eubank[s] then consulted with a local detective about securing counsel, and Det ective Parker calle

d, in turn, a judge and District Att

orney General Tom Charron. General Charron came to the depar tment and introduced himself to Defendant at 11:30 p.m . According to his testimony, he understood that Thomps on had asked to see him. He identified himself as a prosecutor and repeatedly advised De

fendant of his right not to speak. He explained that counsel would be appointed at arraignment at e ight o'clock in the morning. ... At 1:15 a.m ., as he admitt ed in the hearin g, Thompson asked to speak to this attor ney again. Attorney General Charr on re-entered the room, identifie d himself again, but did not gi ve new "Miranda" w

arnings. Thompson th en, and later, c onfessed to the kidnappin gstabbing and drew a map to the scene. His statements, the map, and resulting evidence were introduced at trial. Thompson , 768 S.W.2d at 247.

As stated in the petitioner' s brief, "[t]he basi[c] issu e at the hearing was10 whether [he] had reinstituted talking to the authori ties after having req uested an attorney." At the suppress ion hearing, T.B.I. Agent J erry Eubanks testified as follows: "I remember Detective Graham coming out of the i nterview room and tel ling the Attorney General that G regory Thompson wanted t o talk with him." See State v. Crump , 834 S.W.2d 265, 268-69 (Tenn. 1992). The petitioner s pecifically argues his counsel was ineffectiv e for failing to object to the ad mission of this hearsay evidence.
In our view, the petitioner has failed to demonstrate any prejudice from the failure to object to the hears ay. See Goad , 938 S.W.2d at 370. Our review of the transcript establish es that the petitioner actuall y admitted during the supp ression hearing that he wanted to talk to the District Attorney again. When asked on crossexamination, "Finally , you told that Detectiv e Graham ... that you want ed to see that lawyer [the Dis

trict Attorney] agai n," the petitioner responded affirmati vely. Also, the following exchang e occurred during cros s-examination: Assistant Attorney Gener al: Then you tell Graham that you want to talk to hi m again, didn't you? Petitioner: Yes, sir, after he came in. Assistant Attorney Gener al: You told somebody, at least, I say Graham ... you tol d him that you wanted to tal k to that dist rict atto rney? Petitioner: Yes. The petitioner acknowledg ed that he reinitiated contact with the District Attorney. The hearsay evidence at issue was not necessary to establish that as fact. Thus, there has been no showing of prejudice. Id.

(b) The petitioner argues that his trial counsel w as ineffective for failing to interview w

itnesses who could hav e been beneficial to his case, es pecially during11 the penalty phase. Althoug h not fully articulated, the petitioner's brief sugg ests that the witnes ses could have been useful t o show tha t head in juries mig ht have contributed to his commissi on of the offense. The petitioner specificall y complains about the failure to intervi ew his step-father, his attorney in the militar y, the mother of his co-defendant, a witness who worked with the petitioner after his head injuries, a woman who lived i n the residence where the arrest was made, and an employ ee at the Middle Tennessee Mental Health Institute (MTMHI).

When the claim of ineffectiveness is predicated upon the failure to present potential witnes ses, their testimony sho uld be offered at the post-convic tion hearing. In this manner the court can consider whether (a) a material witness existed an d could ha ve been di scovered b ut for co unsel's n eglect, (b ) a known witness was not inter viewed by cou nsel, (c) t he failu re to disco ver or inte rview a witness prejudiced the petitioner, or (d) the fail ure to call certain w itnesses denied critical evidence t

o the prejudice of the petitioner

. See Black v. State , 794 S.W.2d 752, 757 (Tenn. Crim. App. 1990). Here, because none of the witnes ses testified at the hearing, the petitioner was simply unable to

show prejudice. We cannot speculate upon the usefulness of the se witnesses without the information they could have provided. Id.
(c)

The petitioner next argues that trial counsel w

as ineffective for failing to investigate head inj uries he had incurred w ell before the trial. The petit ioner contends that he had been hospitalized twice for injuries and the f ailure to produce evidence of that at trial q ualifies as ineffective assis tance.
The trial judge made the follow ing findings on this is

sue:12 1. Defense counsel made an adequate i nvestigation of their client's backg round and prior medical his tory. Present coun sel present ed no proof of mental problems on the part of Mr. Thompson that wo uld have been a defense to the charge, or that would constitute a shield against execution. 2. Counse l did not s eek exper t and inve stigative assistance regarding alleged head injuries to Mr. Thompson during his youth, or to testify as to his incompetency at the time of his c onfession because the facts and circumstances did not indicate the necessity for such action.
Defense Attorney Parsons tes tified that he knew about the head injuries the petitioner sustained, "one in a car w reck when he was y oung and ... another as a result of an assault in the military." While he acknow ledged that he "probably" did not put these facts before the jury, Attorney Parsons claimed that he was aware of the possibl e "significance" of the injuri es but did not get all of the medical records. He commented that testing by MTMHI also did not suggest brain damage. Attorney Richar dson concluded that he was not "as thorough as [he] should have been" but contended that the testing by Dr. C opple and MTMHI did not reflect "brain damage." Attorney Richardson also testified as f ollows:

[We d]id try to hire a psychiatr ist but that was not successful and it was... the type thing it w as a theory as to whether to go wi

th his good character and r eservoir of moral upbringing, a man w ith a great deal of ability that could be used in the penitentiar y and a life sentencing. I doubt if there will ev

er be another man on death row that had as good a background as h e did. I don't know of any, and then the question as to whether to mix int

o that or try to accentuate some brain damage that we hadn't been able to spot, but at the same ti me, probably with some more digging may [be] could have and then giv e the jury the idea that this man, if he ever gets out of pri son with some brain damage, he will kill ... s omebody else, that is kind of counter producti ve. We went with one strategy and probably if we had to do it over again, would go with the other str

ategy because that one didn' t work.
Dr. Gillian Blair, a clinical psychologist, who reviewed the petitioner's13 medical records before and after hi s incarceration and read th e reports from MTMHI, conducted a basic psy chological battery and neuropsychological tests. At the time of the evidentiary hearing in 1995, she had not interviewed the petitioner in three years. Since his

incarceration for this c rime, however, the peti tioner had been diagnosed with bipolar

disorder, schizo affectiv e disorder, or schiz

ophrenia. It was Dr. Blair's opinion that in order to determine w hether the petitioner's medic al condition could have affected his behavior at the time of the murder, more testing and background investigation would need to be conducted . She specifically testified that she could not give an opinion on the petitioner's mental condition at either the time of the murder or the time of the ev identiary hearing.
"[T]here is a 'greater duty of inquiry into [a] cl ient's mental health imposed for [the] penalty phase of [a capital] trial.'" Cooper v. State , 847 S.W.2d 521, 529 (Ten n. Crim. App. 19 92) (quoting Bertolotti v. Dugg er , 883 F.2d 1503, 1516 (11 th Cir. 1989)) (second and thir d alter ations i n origi nal). E ven if a psychologically

based defense could not be supported at the guilt phase, the evidence may be useful in mitigation at the sentencing phase. Id. Even when courtordered examinat ions resu lt in a fin ding of sa nity, def ense cou nsel shou ld always attempt to determine whether ps ychological infirmities may be used as mitig ating evidence. Id.
Having determined there is a duty to invest igate whether any psychological impairments might qualify as mitigating evidence, we nonetheless conclude that the petitioner has failed to dem onstrate any prejudice from the failure of trial counsel to further inv estigate the head injuries . The petitioner has failed to establish that the head injur ies had any effect upon his mental st ability at the time of the murder. Further, he has fai led to establish that any type of psychological14 impairment in general may have existed whi ch would have been mitigating evidence. Because Dr. Blair declined to give an opinion on these important issues, the evidence does not preponderate against the trial court's find ing that the defense attorneys were not i neffective.

The decision not to further pursue the head injuries in the penalty phase of the trial also quali fied as a reasonable strategy . Trial counsel's decis ion to emphasize the petitioner's positive qualitie

s rather than to suggest brain damage, while unsuccessful, w

as based upon adequate investi gation. "[T]he fact that a particular strategy or tactic failed or even hurt the defense does not, alone, support a claim of ineffective assistanc e." Cooper , 847 S.W.2d at 528. Deference must be given to an informed trial strategy. This cour

t must refrain from second-guess ing trial counsel's decisi on to emphasize the petitioner 's positive attribut

es rather than possible brain damage. Becau se two experts did no t detect brain damage, counsel cannot be faulted for discarding a strategy that could n ot be supported by a medical opinion.
(d)

The petitioner also alleges his counsel was ineffectiv e for failing to adequately prepare to cross-examine the state's witnesses. His chief complaint is that Attorney Parsons w as ineffective in his cros s-examination of Dr. Char les Harlan, then the State Medica l Examiner.

At trial, Dr. Harl an testified that the victi m died from the stab wounds. He believed that she liv ed for five to ten minutes after sust aining the wounds andwould have been conscious for part of that time. Attorney Parsons, who crossexamined Harlan acknow ledged that he had not interv iewed Harlan prior to trial and15 conceded his surprise that the state utilized the patho logist to prove premedi tation and deliberation.

Again, however, the petitioner has not demonstrated that any deficiency in the cross- examination of Dr. Harlan affected the outcome of the trial. The evidence of guilt, incl uding the elements of premeditation and deliberation, was overwhelmingly

established through the other witnesses. In our v

iew, any failure to more effectively cross-examine Harlan had no effect on the outc ome of the trial. Thus, the petitioner has failed to s how prejudice. See Goad , 938 S.W.2d at 370.
(e) The petitioner next argues that his trial counsel i neffectively prepared the defense witnesses for tri al. He specifically complains that his then gir lfriend Arlene Cajulao was not properly prepared to tes tify. During the penalty phase of the trial, Ms. Cajulao tes

tified that she met the petitioner while he was stati oned in the military in Haw

aii, where they became romantically invol ved. She related that her family was fond of the petitioner and that he was good with the children in her family. She recalled that the petitioner was assaulted by three "guys" who struck him on the head with a crow bar. She related that the petitioner, who had unsuccessfully sought to have his attackers disciplined by the military, became very paranoid after the assault. She al so testified that the petitionerhad been courtmartialed for dislocating an officer's shoulder in a pushi ng incident.
During her cross-e

xamination, the state utili zed military reco rds to establish that the petitioner was removed from the mili tary, not only because of the assault on the officer, but also because he ha d struck another person on the chest and threatened to strike another person with a torque wrench extension bar. Ms.16 Cajulao also acknowled ged that the petitioner, w hile on military duty , had assaulted a roommate with a deadly w eapon.
The petitione r contends t hat if his tr ial counsel

had spent mor

e time with the witness, his negative militar y history could hav

e been avoided. At the postconviction hearing, Attorney Parsons recal led wishing that he had more time to meet with the witness. He testified that his strat egy at trial wa

s to humanize the petitioner by calling sympathetic witnesses. He was aware of the state's opportunity to rebut any positive testimony

about the petitioner and conceded that his only other option would have been to present no mitigating evid ence at all.
Attorney Richardson tes tified that "[t]here were c ertain witnesses that we had to face a problem of them bring ing up the problems that he had i n the Navy." He realized that the cross-examination of Ms. Cajulao might be risky but "didn't realize we woul d have it to the extent th at it ended up we had ...."

In our view, defense counsel's awareness of the possible dangers inheren t in the cro ss-examin ation an d their de cision to present h er positi ve testimony anyway

was a classic tacti cal decision. Because the s trategy was based upon adequate preparation, this court must not second guess.In reviewing counsel's conduct, a "fair ass essment ... requires that every effort be made to eliminate the distorting effects of hindsight, to reconstr uct the circumstances of counsel's challenged conduct, and to evaluate the conduct f rom counsel's perspective at the time." Strickland , 466 U.S. at 689. In our v iew, trial counsel had little choice bu t to present as m uch mitigating evid ence as possible even though there were risks i nherent in that strategy

.17 Moreover, there is nothing in the record to sug gest that additional preparation time with the witness could have prevented the state from eff ectively cross-examining her. If Ms. Cajulao were to testify at all to the peti tioner's prior military b ackgroun d, the sta te would be entitled to rebut t hat test imony. In summary, we cannot hold that the evidence preponderated against the f inding of the trial court that trial counsel had performed effectively.
(f) The petitioner also argues that trial counsel was ineffective by opening the door to da maging ev idence at the

penalty pha

se. First , the petiti oner claims they questioned state w itness Frank Floied "in such a fashion as to allow [ him] to comment that shortly after the killing the [p]etitioner appeared 'cool' and acted as if the killing was nothing." At the guilt phase of the trial, Floied testified that he spokedirectly with the petitioner on the telephone the evening after the arrest. On crossexamination, Attorney Richardson asked, "Did he appear to be mot ivated in attempting to tell you w here the body was ...?" Floied responded that "he was the most cool and

direct per

son that I'v

e ever talk

ed to in this

situation. ... I had some disbelief that he could have done it--that anyone could have done it and described it in that detail as if it w

as nothing." The record show s that Floied's answer

to the question was not responsive to the question asked. Perhaps trial counsel should have objected and sought cur ative instructions. Yet the petitioner has ag ain failed to establish any prejudic

e. Officer Roy Phillips

of the Tennessee Highway Patrol testified that he gave the pet itioner a speeding tick et only hours after the murder occurred. He described the petitioner as "cool, calm, and collected.... [Y]ou' d think he had just come from church the night I stopped him .. .." Thus Floied's remark, while prob ative as to the elem ent of d eliberat ion, was cu mulative and may ha ve been admissible anyway had the state asked about the petiti oner's demeanor. In18 any event, we find no co nstitutionally deficient representation in this r egard.
The petitioner also complains that the trial counsel opened the door to devastating evidence

by asking Dr. Co pple about his good qualities. He points out that the state was then able to present damaging evidence in rebuttal. Prior to trial, a competency evaluation by MTMHI suggested the peti tioner was a malinger

er and showed no remorse. The recor ds there showed the petiti oner was somewhat v iolent and disruptive while at the facility. MTMHI classified the petitioner as having adult antisocial behavior.

Attorney Richardson admitted, "I frankly did not know that ... the [s]tate could use information giv en by the defendant to a psychia trist." Attorney Pars

ons testified that their strateg y was to emphasize positive attributes of the petitioner and show the jury that he could lead a productive l ife in prison. Dr. Coppl e's testimony played a key role in this strategy. Although both trial attorneys apparently were surprised by the fact that the state could use the information ac quired by MTMHI, Attorney Parsons did acknowledge that he knew that positive testimony by Dr. Copple would open the door for the state to present negativ e information.
Again, the petitioner has fail ed to establish any preju dice by whatever deficiency there may hav e been in the performance of counsel. The ev idence does not preponderate against the finding that the sente nce would have been different if the attorneys had known the information collected by MTMHI would have been admissible. In our view, trial counsel had little choice other than to call Dr. Copple in an effort to establish adequate miti gating circumstances.Even if there had been proof that trial counsel shoul d have pursued a different strateg y, there has been no indication that another strategy would have been more effective. Because the jury19 found three aggravators, we cannot conclude that the o utcome would have been any different if the jury had no t heard the evidence concer ning the testing by MTMHI. If any witness testified to the petitioner's good character, the state would have been entitled to rebuttal . The only other option w ould have been to present no proof at all. As Att orney Rich ardson n oted, th e petitio ner had a relatively p roductive background; the failure to pr esent some evidence of his pri or good behavior might have qualified as ineffectiv e assistance.20 (g) The petitioner next submits that his counsel was ineffecti ve by allowing a deposition to be used rather than requiring state w itness Dr. Robert Glenn Watson to appear at the penalty phase of the trial. The petitioner atten ded the deposition; Dr. Watson was cross-examined by trial counsel. At the se ntencing phase, the deposition, including cr oss-examination, was

read into evidence.
Dr. Watson testified that the petitioner's intelligence quotient was in the lower average r

ange. There was no real evidence of brain damage. He believed that the petitioner had malingered on one test which indicated schizophren ia. He found that the petitioner was unt ruthful in claiming he coul d not read. He testified that the petition er had a go od self- concept and tried to portra y himself in a posit ive manner, but had some behavioral problems while at MTMH I. He recalled that the petitioner had tripped one pati ent and had started a fight. Di agnosed as having adult antisocial behavio r, the petitioner showed very little or

no emotion or expressions of empathy w hen talking about the murder. Dr. Watson observed no evidence of remorse.

The petitioner argues his c ounsel was ineffective for w aiving his rig ht to confront the witness at tr ial and for failing to comply with Tenn. R. Crim. P. 15. We need not address whether counsel was deficient by agreeing

to the deposition because it is apparent the petitioner cannot show he w as prejudiced by the use of the deposition. See Goad , 938 S.W.2d at 370 (a reviewing court need not assess whether counsel's conduc t was deficient if no prejudi ce can be found).

In Edward Samuel L. Foy, J r., v. State , No. 03C01-9212-CR-00414 (Tenn. Crim. App., at Knoxv ille, Sept. 28, 1993), a simi lar issue was rais ed. There,21 the deposition was taken outside the petitioner's presence; the petitioner argued his counsel was ineffective for failing to comply with Rule 15 in taking a deposition. Id. , slip op. at 6. The petitioner complained that "'[w]here petitioner's own counsel violated [his] Six

th Amendment right to confrontation ..., counsel's performance w as obviously ineffective and deficient.'" Id. (alteration and omission i n original). Our court ruled that it wa

s purely conjecture to

suggest "that the jury

would have ruled for acquittal had the depositi on testimony been excluded. " Id.

We conclude any claim of prejudice in this case would also qual ify as mere speculation. In fact, the deci sion to use a deposition inst ead of live testimony may have inured to the benefit of the petitioner. If Dr. Watson had appeared in person at the trial, there is at least the possibil ity that his stature or demeanor might have tend ed to accr edit his t estimon y. An impre ssive witne ss is a pers uasive witness. T he readin g of the d epositio n into evid ence migh t have bee n less ef fective for the state. The petitioner has no t carried his burden of establ ishing that but for the deposition testimony, the outcome of the sentencing hearing would have been different.
(h)

The petitioner also argues that his counsel was i neffective for failing to question the assistant district attorney at the motion for new trial about racist remarks; he con tends the inf ormation would h ave been usefu l in establishing a Batson violation. During jury selection, only one African-American, Alonzo Walker, was examined as a prospective juror. The state peremptorily challeng ed that individua l. At the pos

t-convic tion hearin g, Attorney

Parsons tes

tified that s

ome time after voir dire but before the motion for new trial, he had a conversation with the assistant district atto rney, who purportedl y stated, "I hope they fry that nigger." One22 of the grounds raised in the moti on for new trial was whether the trial cour

t erred by refusing to enjoin the state fro m using peremptory chall enges to exclude any African-Americans. At the hearing on the motion for ne w trial, the assistant district attorney explained that he peremptorily challeng ed Walker, not due to his race, but because he was not strong ly in favor of the death penalt y. No questions w

ere asked about the racist comment.

At the post-conviction h earing, Attorney Pars ons testified that he was upset by the assistant dis trict attorney's r

emark. Attorney Richar dson, who was not present at the time the comment w as made, did recall that Attor ney Parsons was upset about the conversation. The assistant district a ttorney flatly denied hav ing made the remark.

In the order denying pos t-conviction relie

f, the trial judge accredi ted the testimony of the assistant district attorney and found that the racist comment had not, in fact, been mad e. Findin gs of fac t made by t he trial ju dge are co nclusive on appeal unless the evidence preponderates against those find ings. Clenny v. State , 576 S.W.2d 12, 14 (Tenn. Crim. App. 1978). The tri al judge who sees and hears the witnesses is generally in a better position than this court to assess credibility. The record in this case does not preponderate against the trial judge's finding. Thus, our scope of rev iew is limited. Bec

ause the petitioner has failed to meet his burden of proving that the racist remark had been mad e, trial counsel could not have been ineffective by failing to cross-ex amine. This issue is, therefor e, without merit.
(i)

Finally, the petitioner

insists that his tri al counsel was ineffectiv e for23 failing to object to comments by the state upon his failure to tes tify. During closi ng argument, the state argued th at no defense to the crime had been offered. The petitioner contends that his trial attorneys shoul d have objected to this arg ument.

The law clearly pr

ohibits any prosecutori al comment upon the accused's election not to tes tify. Griffin v. California , 380 U.S. 609 (1965). To do so constitutes misconduct. Id. at 615. After a careful revi ew of the trial record, however, we concl ude that the argument did not qu alify as a comment upon the petitioner's failure to testify. In our view, comments by the state were a reasonable assessment of the evidence. In State v. Blackmon , 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985), the state ar gued there had been no "excuse o r justification" offered for the offense. Our court ruled that the "comments [were] in the natu re of arguments that the State's pr oof is uncontradicted .... Our Courts have held that arguments of this type are not improper comments on the defendant's ex ercise of his right not to testify ." Id. That ruling controls the disposition of the case. Because the argument was not impro per, there was no ineffectiv e assistance in failing t o object.

II

The petitioner next argues the trial court erred b

y denying funds for the employment of a psychologi st, psychiatrist, or an investigator to hel p prepare for the post-conviction heari ng. Tenn. Code Ann. § 40-14-207( b) provides for state funding of expert services in capital cases:

In capital cases where the defendant has been found to be indigent by the court of record having juri sdiction of the case, such court in an ex parte hearing may in its discretion determine that i nvestigative or expert services or other similar serv

ices are necessary to ensure that the constitutional rights of the defendant are prope rly protected.24 In Owens v. State , 908 S.W.2d 923, 928 (Tenn. 1995), our supreme court r uled that the statute also "applies to pos t-conviction capital

cases." The Owens court also provided guidelines on how to request the services and when the trial court should grant the services: To obtain an ex parte hearing, a capital postconviction petitioner must submit a written moti on to the trial court, allegi ng why under the par ticular facts and circumstances of the case, investigative or expert services are necessar

y to ensure the protection of the petitioner's constitutio nal rights. A bare all egation that support services are needed is not sufficient. In additi on, the motion must include: (a) the name of the proposed expert or servic

e; (b) how, when and where the examination is to be conducte d or the services are

to be performed; (c) the cost of the evaluation and report thereof; and (d) the cost of any other necessary services, such as cou rt appearances. Tenn. Sup. Ct. Rule 13, § 2(B)(10). Once the petitioner satisfies these threshold procedural requirements, the trial court must conduct an ex parte

hearing on the motion. Owens , 908 S.W.2d at 928.

In Owens , the court ruled that the moti on should be granted if the proof at the hearing shows the services are necessary to protect the petitioner's constitutional rights

. Id. The Owens court also noted the statute "v ests with the trial court discretion to deter mine if investigativ

e or expert servi ces are necessary to ensure that the movant's cons titutional rights ar

e protected." Id. at 929.
As a preliminary matter, the state argues that the pet itioner is not entitled to the benefit of the Owens decision because the opinion w as released after the petitioner's origi nal motion was filed. The state contends the petitioner's moti on should be reviewed under Teague v. State , 772 S.W.2d 915, 927 (Tenn. Crim. App. 1988), where our court held a statutory right to investigative or expert services only applied at trial. On cer tain other issues, our supr eme court has decided that the new rule would apply

to all cases in the "pipel ine ... to all actions pendi ng on the25 date this decision is announc ed, and to all causes of action ar ising subsequently ." State v. McClintock , 732 S.W.2d 268, 27 4 (Tenn. 1987). This court has previously applied the "pipeline approach" t o this very issue

. Michael Eugene Sample v. State , No. 02C01-9505-CR-00131, sl ip op. at 24 (Tenn. Crim. App., a t Jackson, Sept. 30, 1996), app. denied , (Tenn., Jan. 1, 1997). In Sample , our court held that the request for services

was made before Owens was released; the panel nevertheless used the standards adopted in Owens to determine whether the tr ial court erred by denying the servi ces. Id. We will attempt to do so here as w ell.
On February 1, 1991, the peti tioner filed an ex parte , sealed motion seeking funds to pay for a psy chologist and investi gator. The motion alleged th at funding was necessary to establish the followi ng: (1) whether trial

counsel was ineffective for failing to present proof of the defendant's impaired mental condition at the time of the offense as miti gating evidence; (2) whether trial

counsel was ineffective for failing to investigate the petiti oner's head injuries; (3) whether the petiti oner was mentally compet ent to give a confession or knowingly waive his right to counsel; (4) whether the petiti oner was mentally compet ent to stand trial; and (5) whether the petiti oner is competent to be execut ed. The motion was supported by an affidavit of Dr. Gillian B lair, a licensed psychologist. Dr. Blair's affidavit incl uded information about the cost of her ser vices and documented her review of the petitioner's post-incarceration me dical records, which indicated that the petitioner had suffered f rom "escalating psychiatric problem s." Becau se the pe titioner had been diagnose d as having a bipolar affect ive disorder, a schizo-affective disorder, or schi zophrenia paranoid type,and was taking lithium, haldol, and cogentin, it was Dr. Blair's opinion "that some degree of such26 impairment [likely] w

ould have existed at the time of the offense and ... would ... have been significant miti gating evidence .... "

Brock Mehler, who had experience in inves tigation and in the development of mitigating circumstances in capital cases, also submitte d an affidavit estimating the cost of inv estigative serv

ices. The document sought a detai led investigation into the petitioner's history so that a determination could be made of the effectiveness of trial counsel in his presentation of mitig ating circumstances.
The motion requesting an ex parte hearing was denied. Judge Gerald Ewell did, howev

er, indicate he would al low a hearing in open c ourt on the matter. The petitioner filed a motion for rec onsideration on the ex parteaspect of the motion, which was al so denied. After an open hearing, the trial court denied the motion for funds. Permission for an i nterlocutory appeal w as denied.
Judge Ewell subsequ ently recused himself from the c ase and the petitioner renewed his motion for expert funds before his r eplacement, Judge Buddy Perry. The petitioner r

elied on the previous moti on filed as well as the memorandum and applications filed see king interlocutory appeal. Judge Perry entered an order staying the matter pending the releas e of this court's opinion in the Owens case. See Gaile K. Owens v. St ate , No. 02C01-9111-CR-00259 ( Tenn. Crim. App., at Jackson, Ma rch 25, 1994), rev'd in part , 908 S.W.2d 923 (Tenn. 1995).
Later, Judge William Russell w as designated to hear the cas e. Again, the petitioner attempted to renew his motion for an ex partehearing for consideration of his reques t. An updated version of Dr.Blair's affidavit wa s filed.1 It is unclear fr om the record whether the petit ioner fi led a new motion f or reconsider

ation after Judge Russel l was appoint ed or whether Judge Russell was act ing on the moti on taken under advisem ent by Jud ge Perr y. All that is in the rec ord is Dr. B lair's affidavit. 27 Judge Russell denied the r equest: 1 Petitioner has renewed hi s motion for State funds to employ a licensed psychologist or psychiatrist to assist in the preparation of this case for post-conviction rel ief. Funds are also sought for an i nvestigator. Such funds may only be made available when there is a demonstrated need. The issue of the petiti oner's mental competency was thoroug hly litigated upon hi s trial. The Court finds that there has been no d emonstrated need for the funds requested, and the motion i s again denied.

A motion to reconsider contended that the expert assistanc e was necessary to establish the ineffectiveness of trial coun sel for failing to inves tigate (1) the petitioner's mental state at trial and when he gav e his confession and (2) the effect of his head injuries. In a pr e-trial hearing, Judg e Russell stated, "[t]he one issue that is basically new and will require some expertise on is the matter of his present mental health." At that poi nt, the petitioner discusse d the motion to reconsider the request for expert services.The trial court, rulin g that "the matter of funding now is not necessar y to get her testimony ," found that Dr. Blair had alr eady performed an evaluation and could be subpoenaed to testify. When the petitioner argued that Dr. Blair's opinions were preli minary and that more testing was necessary, the trial court denied further delay: "In other words, and I'm not condemning you gentlemen, but if this man has been demented for months or years, that should have been brought before the Court l ong before now." When the petitioner argued that Dr. Blair's testimony w as needed to establish whether trial counsel was inef fective for f ailing to present evidence of his h ead injuries, Ju dge Russell agreed to hear p roof on that saying, "Let's put it this way. If she goes ahead and there is something more th an a delaying tactic, I will reconsider."28 Later, the trial court entered an order providing as follows: The petition[er]'s motion to reconsider the Court's previous denial of pre-tr ial funds for investigator s and experts is overr

uled. The State is ordered to make the peti tioner available immediately for mental status testing by Dr. Gillian Blair. The res ults of Dr. Blair's tes ts will be made available to the Distr

ict Attorney General, a nd the reports of any tests hereafter done by the State relative to the petitioner's present mental state shall be shared wi th petitioner's counsel.
The petitioner again filed a request for funds, con tending that Dr. Blair could not perform additional ser vices without compens ation and that she had never been compensated for any of the serv ices rendered. The trial c ourt ruled that no compensation beyond a witne ss fee was warranted and observed that the state medical records could be obta ined by subpoena for the post-co nviction hearing.

Now, the petitioner argues that he was denied his right to due process by the trial court's

failure to authorize the funds for a psychologist or psychiatrist and an investigator. He contends the original order denying services was rendered void when Judge Ewell recused himself. The petitioner insists that the services were necessary to establish the ineffectiveness of trial coun sel by failing to purs ue and present significant mitigating evidence.

This court may not revi ew this issue. The trans cript of the hearing on the motion for expert services conducted in front of Judge Ewell is not included in the record on appeal. Owens clearly contemplates a presentation of proof: "The trial court should gr

ant the motion if, at the hearing, the petitioner demonstrates that investigative or

expert services are necessary to ensure the protection of the petitioner's constitutio nal rights." Owens , 908 S.W.2d at 928. Without a record of29 the hearing, this court cannot determine whether Judg e Ewell erred by de nying the motion. See Edward Jerome Harbison , No. 03C01-9204-CR-00125, slip op. at 17 (Tenn. Crim. App., at Knoxv ille, May 20, 1996), app. denied , (Tenn., Nov. 12, 1996).
The petitioner also argues Judge Ewell's order is void because he recused himself. In support of his contention, he filed as supplemental authority Bolling v. Anderson , 63 Tenn. 550, 552 (1902), wher e our supreme court ruled that a decree entered by an incompet ent chancellor "fails, and w ith it all subsequent proceedings based upon it." We disagree. The post-conviction stat ute contemplates that the trial judge shall preside at the post-conviction hearing, if available: If a petition filed pursuant to thi s chapter raises the

issue of the competency of counsel r epresenting the petitioner, at either the or iginal trial proceed ing or an appellate pro ceeding reviewing such original proceedi ng, such petition shall be heard and determined by the trial judge who presided at the trial in which the conviction occurred .... Tenn. Code Ann. § 40-30-103(b)(1) (repealed 1995). In this c ase, however, the petitioner filed a motion to dis qualify Judge Ewel l on the grounds that he coul d not be partial at the evidenti ary hearing because he h ad already expressed the opinion that petitioner's trial

attorneys gave peti

tioner a vigorous and thorough defense. In the Rule 12 report on the tri al, Judge Ewell obser ved that the attorneys "afforded the defendant as vigorous and thor ough defense as [he] has observ ed in a lifetime of exposure to the legal s ystem." In his request

for the designation of a replacement judge, Judge Ewell explained his recusal as due to "compelling cir cumstances." At the post-conviction hearing, Judge Ewell testified that, in his opinion, the petitioner's trial counsel performed ex cellently.
Judge Ewell may hav

e been qualified to hear the motion for services.30 In our view, he recused himself out of his desire to as sure the petitioner the perception of a neutral arbiter, absent any personal bias as to his claims; however, even if Judge Ewell believed trial counsel had performed within acceptable standards of the profession, the petition er waived any complaint about his competency to hear the motion. The petitioner knew abou t the potential bias well in advance of the motion and chose to ask for relief from Judge Ewell anyway. In Holmes v. Eason , 76 Tenn. 754 (1882), our supreme c ourt noted that the right to an impartial judge may be w aived where there is

no timely objection: For otherwise the parties would be allow ed to experiment with the court by tac

it acquiescence, and rai se the objection when the result of the trial proved to be unfavorable. *** And, generally, if the facts are known to the party recusing, he is bound to mak e his objection before issue joined, and before the trial is commenced, otherwise he will be deemed to have w aived the objection .... If the objection be raised of record, and the court undertake to proceed notwithstanding, the judgment might be held void under these princi ples .... But if no objection be made, and the court is permitted t o go to a trial of the case on the merits, the judg ment is clearly not v oid on its face, and something more than the mere ex istence of the fact on which the incompetency rests should be requir

ed to authorize a resort to another tribunal. Id. at 757, 761. This principal was affirmed more recently by our court. In Grant v. State , 542 S.W.2d 626, 62 7 (Tenn. Crim. App. 1975), the petitioner had argued his post-conviction judge "should not have heard this proceeding because he had heard the early habeas corpus petition." There, counsel at the pos t-conviction hearing

had commented on the conflict but stated, "w e can continue as you wi ll." Id. On appeal, this court ruled that the petitioner "acquiesced in J udge Hinson hearing the c ase." Id. Also, in Woodson v. State , 608 S.W.2d 591, 593 (Tenn. Crim. App. 1980), our court ruled "that the petitio ner's failure to raise the issue prior to trial amounted to a waiver of his rig ht to question the trial judge's qualifications to hear the case ...."31 See also James J. Benson v. State , No. 01C01-9401-CC-00026 ( Tenn. Crim. App., at Nashville, Nov . 8, 1996), app. granted , (Tenn., April 14, 1997) (q uoting with approval the principle

s stated in Holmes , 76 Tenn. at 757, 761).
The same logic applies here. The recusal issue should hav e been raised before the hearing. Judge Ewell's order was not rendered void by his subsequent recu sal. Moreover, withou t the transcript of the hearing b efore Judge Ewell, we cannot conc

lude there was an abuse of discretion in denying the s ervices. It is the burden of the appellant to prepare a record on ap peal that presents a complete and accurate account of w hat transpired in the tri al court with respec t to the issue on appeal. Tenn. R. App. P. 24(b). The failure to do so r esults in a waiver of such issues and a presumption tha t the ruling of the trial court was correct. See , e.g. , State v. Oody , 823 S.W.2d 554, 559 (Tenn. Crim. App. 1991); State v. Draper , 800 S.W.2d 489, 493 (Tenn. Crim. App. 1990). On the r ecord before us, we cannot conclude the trial court abused its discretion by denying the servi ces.

III Next, the petitioner ar

gues the trial court er

red by refusing to set as ide the designatio n order by our supre me court and by ref using to reinstat e Judge Buddy D. Perry. After

Judge Perry entered an order staying all proceedings until the Court of Criminal Appeals r eleased its opinion in Owens , the supreme court entered an order specially des ignating Judge William Russell to hear the matter. Later, the petitioner filed a motion req uesting that the supreme cour t's order be "recalled." That order w

as denied. A similar mot ion by the petitioner fi led with t he supreme court was denied.

In its order

designati ng Judge R ussell to he ar the matter , the supreme32 court cited Tenn. Code Ann. § 16-3 -212, which provid es, in part, as follows: Special personnel for expedition of post-conviction proceedings in capital ca ses. --The supreme court is authorized to employ, r eassign, or contract w

ith individuals utilizing special funds appropri ated solely for the purpose of providing pr ompt and fair adjudication of post-conviction proceedings in capital sentence cases, including authority

to assign the additional personnel the duties of personnel reassig ned to the post-convictio n cases. The petitione r argues t hat the secti on cannot be c onstrued to a llow the s upreme court to remove judges without cause. Firs t, he argues that such an int erpretation violates Tenn. Sup. Ct. R.11 (III)(d), whic h places responsibility

for reducing docket delays on the presiding judge of each judicial dis trict. Next, he ins ists that such an interpretation violate

s Article VI, Section 11 o f the Tennessee Constitution, prov iding for the appointment of special judges in limited situations. Finally, he contends that such an interpretation v iolates Article I, Sect ion 8 and Article XI, Sec tion 8 of the Tennessee Constitution.

This court is bound by the decisions of our supreme court. Our court may only review

the "final judgments of trial c ourts." Tenn. Code Ann. § 16-5- 108(a). Our court does not have the jurisdiction to review the propr iety of an order by our supreme court. "'[ I]t is a controlling principle that inferior c ourts must abide the orders, decrees and prec edents of higher courts. The s lightest deviation from this rigid rule w

ould disrupt and destroy the sanctity of the judici al process.'" State v. Irick , 906 S.W .2d 440, 443 (T enn. 1995) (quo ting Barger v. Brock , 535 S.W.2d 337, 341 (Tenn. 1976)). See also Bloodworth v. Stuart , 428 S.W.2d 786 (Tenn. 1968). Accordingly, we may neither modify nor rescind the order of the supreme court designating Judge Rus sell to hear the case.

IV33 The petitioner next argues that the opinion in State v. B rown , 836 S.W.2d 530 (Tenn. 1992), should be retroactiv ely applied to his case,thereby rendering the jury instructions at trial erroneous. In Brown , our supreme court ruled that, because of potential juror confusion, trial courts shou ld no longer instruct the jury that the premeditati on required to sustain a c onviction for first degr

ee murder can be "formed in an instant." The tri al in this case was c onducted before the ruling in Brown ; thus, the petitioner wo uld not be entitled to relief unl ess the holding had retroactive applicati on.

This court has repeatedly held that Brown did not announce a new constitutional principl e. Retroactive applic ation is not permissible. See , e.g. , Lofton v. State , 898 S.W.2d 246, 250 (Tenn. Crim. App. 1994) (citing three unpublished cases holding Brown does not apply retroactively). Accordingly, erroneous jury instructions under Brown could not qualify as a bas is for post-conviction relief.

V, VI, VII, & VIII Issues five, six, se

ven, and eight may be con sidered together. They are as follows:

(V) whether the jury instructions on the "heinous, atrocious or cruel" aggravating circumstance were unconstitutionally v

ague; (VI) whether the petitioner's confession was unlawfully obtained and illegally

admitted at his trial; (VII) whether the failur e of the trial court to instr uct the jury on the effect of non-unanimity and the option to recommend life imprisonment violated the petition er's rights under the Eighth and Fourteenth Amendments; and (VIII) whether the tr

ial court's allowi ng Dr. Watson to testify and introduce psy chiatric/psycholog ical reports through his testimony w as an unconstitutional denial of the petitioner's rights.34 In each instance, our supreme court previously determined the issue on direct appeal. Thompson , 768 S.W.2d at 248, 2 51, 252. "A ground for relief is 'previously determined' if a court of competent jurisdiction has ruled on the merits after a full and fair hearing." Tenn. Code Ann. § 40-30-112(a ) (repealed 1995). A "full and fair hearing" occurs if the "petitioner is given the opportunity to present pr oof and argument on the petition for post- conviction relief." House v. State , 911 S.W.2d 705, 714 (Tenn. 1996) (footnote omitted), cert. denied , 116 S.Ct. 1685 (1996).

The petitioner's fifth issue, that the jury instructions on the "heinous, atrocious or cruel" ag gravating circumstance were unconstituti onally vague has been considered and rejected by our supreme court. On dir ect appeal, the petitioner contended that the ag gravator was "unc onstitutionally vag ue under the holding in Maynard v. Cartwright ." Thompson , 768 S.W.2d at 252. O ur supreme court ruled that "the additional [ Williams ] instructions giv e the jury sufficient guidance to prevent arbi trary sentencing." Id. Thus, the issue has been previously determined. See Tenn. Code Ann. § 40-30-112(a) ( repealed 1995).

In State v. Willia ms , 690 S.W.2d 517, 529 (Tenn. 1985), our supreme court defined the "heinous, atroci ous and cruel" aggrav ator in such a way as

to narrow its applicati on and meet constitutional standar ds. The petitioner concedes that these defini

tions c omply w ith the r equire ments of Williams ; he argues, however, that subsequent cases, primar ily federal cases, hav

e found the instructions giv en to be unconstitutionally v

ague. In Rickman v. Dutton , 854 F. Supp. 1305 (M.D. Tenn. 1994), a federal district court did indeed rule that the jury instructions on this particular aggrav

ating circumstance w

ere erroneous. The ruling in Rickman , however, does not bind this court. The United States Supreme Court is the only federal court Tennessee courts ar e bound to follow. See State v. McKay , 68035 S.W.2d 447, 450 (Tenn. 1984); State v. Bowers , 673 S.W.2d 887, 889 (Tenn. Crim. App. 1984). Thus, the issue is without merit.

The petitioner's sixth issue is that his confession was unlawfully obtained and illegally

admitted at his trial. The petitioner admits that he unsuccessfully contested the admission of his confession on dir ect appeal. See Thompson , 768 S.W.2d at 247-48. On direct appeal, the petitioner cited a "violati on of his fifth amendment right to counsel during custodial inter rogation." Id. at 247. He insisted that an invo cation of his right to remai n silent was not honored. Our supreme court agreed that when an accused invokes the right to remain silent, all questioning must cease. Id. Yet the supreme court rul ed the right may be subsequently waiv

ed if the accused initiates further contact with police. Id. This record demonstrates that the peti tioner reinitiated contact with the police and "voluntarily rel inquished" his right s to counsel and to remain sil ent. Id. Our supreme court so held. Id.

The petitioner claims, how ever, that he is entitl ed to a review of the admissibility of his s

tatement under the standards enunciat ed in State v. Cr

ump , 834 S.W.2d 265, 269 (Tenn. 1992). In Crump , our supreme court held that the admissibility of statements obtained after a perso n in custody has decided to remain silent depends on whether his right to cut off questioning was "scrupulously honored." Id.

Post-conviction rel ief may be granted when a c onviction is "void or voidable becau se of the abrid gement ... of any [constitutio nal] right ... inclu ding a right that was not r

ecognized as existing at the time of trial if either constitution requires retrospecti

ve application of that rig ht." Tenn. Code Ann. § 40-30-10536 (repealed 1995). By thi s argument, the petitioner i mplies that Crumpcreated a "right that was not r

ecognized as existing at the time of trial." Ther e must be retroactive applicati on "when the new state rul e enhances the integrity and reliability of the fact finding process of the tri al." Meadows v. State , 849 S.W.2d 748, 754 (Tenn. 1993).

After Crump was arrested and provided Miranda warnings, he inv

oked his right to remain si lent. Crump , 834 S.W.2d at 266. Notwithstanding his assertion that he did not wish to tal k to police, the officers arr anged to take Crump on a ride through the crime scene ar ea in the hope of learning more about the crime. Id. at 267. Crump did, in fact, make some incriminating statem ents and later gave a full confession. Id. Our supreme court concluded that the police conduct in tak ing Crump on the ride "amounted to a v iolation of the defendant's state and federal constitutional rights ." Id. at 270. Our supreme court al so determined that the subsequent confession giv en was inadmissible, ev en though it was made after Crump had been given Miranda warnings. Id. at 271. In Crump our supreme court relied on State v. Smith , 834 S.W.2d 915 (Tenn. 1992), a companion case released the same day, to determine that the confession was inadmissi ble. In Smith , it was held that under the Tennessee Constitution the "extraction of an i llegal, unwarned confession from a defendant raises a rebuttable presumption that a subsequent confession, even if preceded by proper Mirandawarnings, is tai nted by the initial illegality," but th at presumption may be over come by the state if the state ca n show the "'taint is so attenuated as to justify admission of the subs equent confession.'" Id. at 919 (quoting in part Oregon v. Elstad , 470 U.S. 298, 335 (1985) (Br ennan, J., dissenting)).

The Crump decision encompasses two separate holdings: first,that2 We m ake no findi ngs as to whether the Sm ith holding on the presume d illegalit y of a subsequent confessi on foll owing an ini tial ill egal confessi on is a new consti tution al law t

o be applie d retrospect ively , as that determinati on is not necessar y to resol

ve this i ssue. "[C] ourts do not decide constitu tionalquestions unl ess resoluti on is absolut ely necessar

y for det

ermination of

the case and the rights o f the parties ." Owen s v. State , 908 S.W .2d 923, 9 26 (Te nn. 1995 ). 37 once an accused asserts his right to remain silent, the state must scrupulously honor that r

ight or ru n the risk that any stat ement acquir

ed be exclu ded in some circumstances; and second, r elying on Smith , where an initial illegal confession is tainted , the sub

sequent confess ion wi ll be pr

esumed i llegal . That po rtion o f Crump , which holds that when an accused invokes his fifth amendment right it must be honored , does ap ply to the petit ioner i n this c ase. Ye t that po rtion o

f Crump is not new law. In fact, the s

ame law was applied i n the direct appeal of this case. See Thompson , 768 S.W.2d at 747. Thus, a Meadows analysis is unnecessary. This issue has been previousl y determined adversely to the petitioner and cannot be th e basis fo r post- convic

tion re lief. 2

The petitioner's seventh issue involving challenges to certain jury instructions at the penalty phase has been previously determined. First, he arg ues that the instructions required the jury to find mitigating circumstances only if there was unanimous agreement on thei r existence; he contends that the charge violated the ruling in Mills v. Mary land , 486 U.S. 367 (1988). The petiti oner also complains that the jury w as not i nstruct

ed that if they fai led to ag ree on a s entence,a life sentence would automaticall y be imposed. Finally , the petitioner complains as erroneous instructions that if aggravating circumstances had been proved, such circumstances must be outw eighed by "sufficiently substantial" mitigating circumstances before a life sentence may be impo sed; the petitioner admits this issue was review

ed on direct appeal, but submits the supreme court "misse[d] the point."38 On direct appeal, the petitio ner argued "that the jury in this case was required to agree unani mously on the existence of mitigating circumstanc es, and thereby one or more jurors might have been precluded from considering evidence he or she deemed mitigating in the ultimate determination." Thompson , 768 S.W.2d at 250. The supreme court revi ewed the instructions and ruled that they include d "none of the objectionable features of the ins tructions in Mills .... There is no merit to this issue." Id. at 251. Thus, the issue has been pr eviously determined. See Tenn. Code Ann. § 40-30-112(a) (r epealed 1995).

The contention that the instructi ons were erroneous for usi ng the phrase "sufficiently substantial" has also been previously determine d. On direct appeal, the petitioner argue d that "this phrasing plac es a burden on the defendant to demonstrate that death is not the appropriate penalty, and that this burden is a denial of due process." Thompson , 768 S.W.2d at 251. In rejecting this cl aim, our supreme court observed, "[w ]e are convinced that in this context, the phrasing does not operate to preclude consideration of any relevant mitigating facto rs and that it satisfies the constraints of the eighth amendment." Id. at 252. Accordingly, this issue has been previousl y determined.
The petitioner's eighth issue is that the trial court erred by allowing Dr. Watson to testify. He argues that the tes timony was not proper rebuttal evidence. On direct appeal, the petitio ner had contended that the trial court erred by admitting Dr. Watson's deposition testimony to r ebut the defendant's own expert

. Id. at 248. He insisted that the use of this evidence violated the United States Sup reme Court's holding in Estelle v. Smith , 451 U.S. 454 (1981), wher e limitations had been placed on the use of court ordered mental evaluations. Our suprem e court ruled that "[a]ll of these limitations were observed in this case.... W e find no constitutional error in39 the admission of Dr. Watson's deposition." Thompson , 768 S.W.2d at 248. T hus, the issue has been previous ly determined.

IX & X Issues nine and ten may also be considered together. They are as follows: (IX) whether the petitioner was denied his constitutional right to a t rial by jury b y the exclus ion of two prospect ive jurors; and (X) whether the petitioner's constitutional rights were violated by implicit referen ces to his failure to testif y. Each claim has been waiv ed. We will attempt to explain. The pos t-conviction statute in effect when the petition was filed def ines waiver:

(b)(1) A ground for r

elief is waived if the petitioner knowingly and under

standingly failed to pr

esent it for determination in any procee ding before a court of compete nt jurisd iction in which the gr ound cou ld have been presented. (2) There is a rebuttable pr esumption that a ground for relief not raised in any such proceeding which was held was wai

ved. Tenn. Code Ann. § 40-30-112(b) (r epealed 1995). Our supreme cour t has held that "the rebuttable presumption of wai ver is not overcome b

y an allegation that the petitioner did not personall y, knowingly , and understandingly fail to raise a ground for relief." House , 911 S.W.2d at 714. The court continued, "[w]aiver in the postconviction context i s to be determined by an objec tive standard under w

hich a petitioner is bound by the action or inaction of his attor ney." Id. Clearly, each claim was available on dir

ect appeal.
The petitioner submits as his ninth issue that his consti tutional right to a trial by jury was violated by the unconstitutional exclusion of two prospective jurors by the trial court. The trial court excluded these prospective jurors because of their40 moral or religious bas

ed reluctance to impose the death pe nalty. The petitioner now argues that such an excl usion violates Artic le I, Section 4 of the Tennessee Constitution, which provides that no political or religious test shall be required as a qualification for any office of publi c trust in Tennessee. He als o insists that such an exclusion violates Article I, Section 6 which provides that no religious or political test shall ever be requi red as a qualification for a j uror.

This issu e was not pu rsued at t rial or on d irect app eal. Acco rdingly, the claim is waiv

ed. See House , 911 S.W.2d at 714. Notwithstanding w aiver, our courts have rejected the merits of this argument. Our supreme court has held that there is no constitutional violation by excusing jurors whos e "views on capital punishment rendered them unable to f ollow the law as given to them by the court and to perform their duties as j urors in accord with their oaths." State v. Jones , 789 S.W.2d 545, 547 (Ten n. 1990) (quotin g State v. Bobo , 727 S.W.2d 945, 949 (Tenn. 1987)).
The petitioner's tenth argument, that his constitution al rights were violated by the repetitive implicit references to his failure to testify, is also procedurally barred. In closing, the state comment ed on the failure to present a defense: There has been no defense presented to first -degree murder .... [T]hey [the defense att orneys] have been able to see the "handwriti ng on the wall." They are good attorneys, they saw

the proof, they knew ther e was no defense, so they have offered no def ense to murder in the first degree. There was no objection at the trial and the issue was not raised on direct appeal.By failing to raise the iss ue on direct appeal, the petiti oner has waived it. Tenn. Code Ann. § 40-30-112(b) (repeal ed 1995); House , 911 S.W.2d at 714. If we were to address the merits of the issue, we would have ru led for the state. As stated41 previously, the ar

gument was not improper and was merely an assess ment of the evidence presented at tri al. See State v. Blackmon , 701 S.W.2d 228, 233 (Tenn. Crim. App. 1985).

Having found no merit to any of the petitioner's claims for postconviction relief, the j udgment of the trial court is affirmed.

__________________________________ Gary R. Wad e, Judge CONCUR:

______________________________ Joseph M. Tipto n, Judge

_______________________________ William M. Barker, Judge